Seiler v. New York Ice Cream & Creameries, Inc.

Opinion by

Williams, J.,

Defendant hired plaintiff as farm manager at a salary of $100 per month and agreed to give him sixty days’ notice to terminate the employment, such notice to date from the end of the next calendar month. Plaintiff .worked from October 11, to November 21, 1917, when he was dismissed without notice, and as he testified, without payment. The court below, sitting without a jury, found for plaintiff, and judgment was entered for $330. Defendant appealed.

The first assignment relates to the refusal of testimony that the books of defendant showed payments of salary had been made to plaintiff. Inasmuch as the books were not offered in evidence and the witness was permitted to testify fully as to all payments we see no harm to defendant in the rejection.

The second and third assignments raise two questions: (1) must plaintiff prove he did not work during the period for which he demanded salary; and (2) is the failure of the court to give plaintiff as much damages as the finding might warrant, reversible error?

Plaintiff, having been wrongfully discharged, was prima facie entitled to wages for the full term provided ■by the contract, and the burden of proving he did work, or might have worked, during the period, was upon defendant: Heyer v. The Cunningham Piano Co., 6 Pa. Superior Ct. 504. There was no such proof.

The failure to give all the damages warranted by the evidence was an injury to plaintiff, of which defendant has no right to complain.

The judgment is affirmed.