Dieringer v. Meyer , 42 Wis. 311 ( 1877 )

LyoN, J.

It is well settled that if a servant, without the consent of his master, engage in any employment or business for himself or another, which may tend to injure his master’s trade or business, he may lawfully be discharged before the expiration of the agreed term of service. This is so because it is the duty of the servant, not only to give his time and attention to his master’s business, but, by all lawful means at his command, to protect and advance his master’s interests. But when the servant engages in a business which brings him in direct competition with his master, the tendency is to injure or endanger, not to protect and promote, the interests of the latter. It was said by Lord ElleNbosough, in a discussion of this subject in Thompson v. Havelock, 1 Campb., 527, that “ no man shall be allowed to have an interest against his duty.” Manifestly, when a servant becomes engaged in a business which necessarily renders him a competitor and rival of his master, no matter how much or how little time and attention he devotes to it, he has an interest against his duty. It would be monstrous to hold that the master is bound to retain the servant in his employment after he has thus voluntarily put himself in an attitude hostile to his master’s interests.

The fact may be, in certain cases, that,notwithstanding the servant has engaged in a rival business, still he has given his whole time and attention to the business of his master. An attempt was made to show that this is such a case. But the existence of that fact will not take a case out of the rule above, stated, for the reason that the servant would yet have an interest against his duty.

The cases which sustain or tend to sustain the doctrine here laid down, a:-e very numerous. For convenience we cite a few of them; Singer v. McCormick, 4 W. & S., 265; Jaffray v. King, 34 Md., 217; Adams Express Co. v. Trego, 35 id., 47; Lacy v. Osbaldiston, 8 Car. & P., 80; Read v. Dunsmore, 9 id., 588; Nichol v. Martyn, 2 Esp., 732; Gardner v McCutcheon, 4 Beav., 534; Ridgway v. Market Co., 3 Ad. & E., 171; Amon v. Fearon, 9 id., 548; Horton v. McMurtry, 5 Hurl. & N., 667. See also Wood on Master and Servant, sec. 316, and cases cited in notes.

If the plaintiff became engaged in a business wbicb necessarily made bim a competitor of Ms employer in the purchase of wood at New Cassel, or in selling the same at Fond du Lac, such business had a direct tendency to raise the price at the former place and depress it at the latter, as well as to decrease the defendant’s business; and hence its tendency was hostile to the defendant’s interests. And it w,as equally hostile, even though the plaintiff conducted it entirely by agents, and gave his whole time and attention to the business of the defendant.

The learned circuit judge charged the jury, in effect, that it was no valid cause for discharging the plaintiff before the expiration of the term for which he was employed, that he engaged in such rival and hostile business, if he gave his whole time and attention to the business of the defendant. Within the rules of law above stated, this instruction was erroneous, and the verdict may have been predicated upon the instruction and controlled by it. Hence the error is tnaterial, and fatal to the judgment.

As to whether the contract of hiring was or was not for a specified term of service, we express no opinion upon the evidence ; but we have decided the case on the theory that there was a hiring for a year, that being most favorable to the plaintiff.

By the Qov/rt. — Judgment reversed, and cause remanded for a new trial.