Citation Numbers: 36 Mo. App. 630
Judges: Gill, Other
Filed Date: 5/20/1889
Status: Precedential
Modified Date: 7/20/2022
— It is settled in. this state that if one person hires to another for a definite period and abandons such service before the expiration of his term, without cause proceeding from his employer, or the act of God, he can not recover for the services he has rendered. Earp v. Tyler, 73 Mo. 617, and cases there cited. The
Had defendant set up by way of counter-claim an agreement to serve for a definite period, and asked affirmative relief, as was the case in Church v. Fagan, 48 Mo. 125, then to warrant such relief the burden might well be claimed to rest on the defendant as to that issue. But here the matter is different. Plaintiff sues on a certain contract, and he must establish the facts by him alleged before the aid of the law can be invoked. Sharswood on Ev.
Suppose the status of the parties was reversed, and Lipscomb was suing Leveridge for damages for abandoning his contract of service for a definite time, and Leveridge should deny the contract as set up by Lipscomb, would not the burden of that issue rest on Lipscomb ? It would therefore be error to tell the jury, unless Leveridge proved by a preponderance of the evidence that the contract of hiring was for an indefinite period, the verdict should be for Lipscomb. Boogher
It appears there were but the two witnesses as to the terms of the contract, plaintiff claiming that one thing and defendant another and different thing. It may be the jury found the evidence equipoised, evenly balanced, and by the instructions of the court the jury might reasonably have concluded that under such circumstances it was their duty to find for the plaintiff, whereas the reverse is true as a matter of law.
The judgment must be reversed, and the cause remanded.