DocketNumber: No. 21,058
Citation Numbers: 141 Minn. 343
Judges: Hallam
Filed Date: 1/3/1919
Status: Precedential
Modified Date: 9/9/2022
Plaintiff and defendant entered into a written contract by which defendant employed plaintiff as a land salesman for one year from May 1, 1917, at a stipulated salary, payable monthly, and actual traveling expenses. Plaintiff sues for the instalment of salary for July, 1917, and certain traveling expenses. The jury found for plaintiff. From an order denying defendant’s alternative motion for judgment notwithstanding the verdict or for a new trial, defendant appeals.
The main defense was that on June 30, 1917, the parties by mutual consent terminated the contract. The jury found against defendant on this issue. Defendant contends that this finding is not sustained by the evidence, but that the evidence conclusively proved that the contract was canceled by mutual consent.
We have carefully examined the evidence and we are of the opinion that it is sufficient to sustain the verdict. Defendant had an office in Minneapolis. The contract specified no place where the services were to be performed. Plaintiff was sent to Kenmare, North Dakota, with the understanding that he was to work there. He did work there until June 30. The testimony on behalf of defendant is explicit that on June 30 plaintiff had a conference with Mr. Summerville, defendant’s president, that both agreed that on account of drouth in that vicinity no business could be done and that it was mutually agreed that plaintiff’s contract be canceled. There are some circumstances that corroborate defendant. On the other hand, plaintiff blankly denies that there was any such agreement or that there was at that time any talk with reference to cancelation of the contract. His testimony is substantially as follows: On June 30 Summerville told him he might go to Minneapolis to spend July 4. He did so and while there he reported to defendant’s office every day. About the middle of the month Summerville told him that he had better not go back to North Dakota “until we got some rain and things looked better” but that defendant would try to find some new territory where conditions were better, and he asked plaintiff to stay around the office in the meantime. Plaintiff did so and continued to report at the office every day. Finally on July 27 Summerville told him: “There is no crops anywhere where we can throw our forces in to work,” and asked plaintiff to cancel his contract but plaintiff refused.
2. Defendant contends that plaintiff cannot recover because he made no effort to secure other employment during July. An employee wrongfully discharged is under obligation to use diligence in seeking other employment. McMullan v. Dickinson Co. 60 Minn. 156, 62 N. W. 120, 27 L.R.A. 409, 51 Am. St. 511; Cooper v. Stronge & Warner Co. 111 Minn. 177, 126 N. W. 541, 27 L.R.A. (N.S.) 1011, 20 Ann. Cas. 663; Schommer v. Flour City Ornamental Iron Works, 129 Minn. 244, 152 N. W. 535. But this principle has no application to^this case. There is no claim that plaintiff was discharged until July was almost spent. According to plaintiff’s evidence he disposed of himself up to that time as defendant directed and was in the employ of defendant under the contract. The transaction of June 30 was not a discharge. It was a mutual cancelation of the contract or nothing. The jury found it amounted to nothing.
3. Defendant contends that the charge of the court was argumentative; that it contained misstatements of fact; that it misled the jury by an intimation that the question of performance by plaintiff of his contract during May and June had a bearing on his right to recover his salary for July. The portions of the charge excepted to cover about two pages of appellant’s brief. We do not deem it necessary to quote them here. We have carefully examined the whole charge. In our opinion it fairly stated the issues and is not open to the objections urged.
Order affirmed.