Halsey v. Meinrath , 54 Mo. App. 335 ( 1893 )

Smith, P. J.

— This is an action wherein the plaintiff in his petition stated that he was employed by defendant as a traveling salesman in his business for the period of one year from the first day of January, 1888, at a salary of $90 per month and expenses; that on said first day of January, 1888, in pursuance of’ said employment, plaintiff entered upon his duties as such traveling salesman for defendant, and continued to perform his duties, and served defendant as such salesman till the thirtieth day of June, 1888, when defendant, without any just and reasonable cause, and not on account of any fault of plaintiff, discharged plaintiff from said employment and has ever since refused, and still refuses, to reinstate plaintiff in said employment, or to pay him any part of plaintiff’s monthly salary and expenses since the first day of July, 1888, whereby he was damaged in the sum of $1,000.

The defendant by his answer interposed a general denial. When the case was reached for trial, he made no appearance, so that a judgment of nil dicit was entered against him for $860. At a subsequent term the defendant appeared again and filed a motion to set aside the judgment on the ground that it was irregular on the face of the record, in that the petition. showed that the plaintiff was not entitled to recover any sum oxceeding $263, whereas the judgment was rendered for $860, and in that under the petition the plaintiff -tfas only entitled to recover the salary for the months of July, August and twenty-two days in the month of September at the rate of $90 per month with interest, etc. This motion was sustained, to which action of the court plaintiff took exception, preserving the same by proper bill of exception duly allowed and filed in the case. The plaintiff making no further appearance, the court at the second term thereafter dismissed the cause for want of prosecution. To reverse this judgment the plaintiff sued out his writ of error and brings the cause here for revision.

This is not an independent proceedingin the nature of a writ of error coram nobis, but a proceeding under the statute (Revised Statutes, sec. 2235) to vacate a judgment at a term subsequent to the term of its rendition for an irregularity appearing on the face of the record. It is a motion in the original suit and for this reason an appeal or writ of error does not lie from an order sustaining the motion to set aside the judgment'and reinstating the cause on the docket, but the remedy of the other party is, as in this case, to take a bill of exceptions, proceed no further in the cause, suffer a final judgment to go against him and then prosecute his appeal or writ of error. State ex rel. v. Burns, 66 Mo. 227; Hirsch v. Weisberger, 44 Mo. App. 506; Edwards v. Albrecht, 42 Mo. App. 497; Blanchard v. Wolf, 6 Mo. App. 200.

There is no rule of practice under the statute or at common law which required the plaintiff to file a motion for a new trial or in arrest of the judgment against him to entitle him to prosecute his appeal or writ of error. When the judgment dismissing the cause was entered, the plaintiff’s right of appeal or to a writ of error accrued. Implement Co. v. Wheeler, 27 Mo. App. 16; Hirsch v. Weisberger, 44 Mo. App. 506; State ex rel. v. Burns, supra; Gilstrap v. Felts, 50 Mo. 431; Bower v. City of Kansas, 51 Mo. 459. It follows from these considerations that the record in the cause is properly before us for examination.

The action of the trial court in setting aside the judgment for alleged irregularity in rendering the same constitutes the plaintiff’s principal ground of complaint. The suit was brought before the expiration of the term of the contract for which plaintiff alleges he was ■employed. A servant wrongfully discharged may treat the contract of hiring and service as continuing and bring a special action against the master for breaking it by discharging him, and this remedy he may pursue whether his wages are paid up to the period of his discharge or not. Ream v. Watkins, 27 Mo. 516. And the general rule in cases of this kind is, that the measure of damages cannot exceed the contract price, neither is it necessarily the full contract ‘price, for it may be that the plaintiff may after his dismissal sue and recover a judgment and then obtain employment elsewhere and receive for the residue of the term much more than by the contract he would have been entitled to if he had served out his term. The damages must ■depend on the kind of service to be performed and the wages to be paid, and allowance should be made for the time that would probably be lost before similar employment could be obtained. In some pursuits it may be almost certain that the dismissal of a person at a particular season will throw him entirely out of employment for the residue of the year, whilst in other pursuits similar employment could readily be obtained elsewhere on better terms, and therefore the amount of the damages is a question for the jury under all the circumstances. Lambert v. Hartshorne, 65 Mo. 551.

This case was not tried until after the expiration of the term of plaintiff’s employment. The plaintiff’s damages for breach of the alleged contract of employment are prima facie the contract price agreed upon for such service. And in addition to this the plaintiff under the contract is entitled to his reasonable expenses. This of course would have to be established by extrinsic evidence.

But it is suggested that the plaintiff could only recover such damages as had resulted at the time of the commencement of the suit. This is an error. The plaintiff was entitled to such damages as accrued up to the expiration of his term of service in a case like this where the damages were of a continuing character. Lally v. Cantwell, 40 Mo. App. 50; Miller v. Boot & Shoe Co., 26 Mo. App. 61; Ream v. Watkins, supra; Lambert v. Hartshorn, supra. We must indulge every presumption in support of the judgment.

Under these rules in respect to the admeasurement of the plaintiff’s damages, it may have well been that the court under the evidence adduced before it felt constrained to allow the plaintiff the amohnt of his salary for the whole unexpired term of his employment, and not only that, but the evidence may have been such as to justify the augmentation of the damages just mentioned by the amount of the plaintiff’s.expenses. A showing of this sort was allowable under the pleadings and the rules for the measure of damages already referred to, and we must presume that there was such evidence and so' conclude that the amount of the damages adjudged is not in excess of what was authorized under the petition and the contract pleaded.

No recoupment of damages was claimed in the answer, or if there had been we do not think the case would have been different since the presumption in favor of the correctness of the finding and judgment of the trial court would still have been indulged.

No irregularity is perceived in the record before us. It follows that the judgment appealed from be reversed and the cause remanded with directions to the circuit court to reinstate the first judgment in behalf of the plaintiff.

All concur.