Alba v. D. Moriarty & Co.

36 La. Ann. 680

• Court: Supreme Court of Louisiana
• Decided: May 15, 1884
• Docket: No. 8917
• Status: Published

Opinions

The opinion of the Court was delivered by

Todd, J.

The plaintiff sues the defendant, David Moriarty, doing business in New Orleans as a wholesale grocer under the name of D. Moriarty & Co., for a year’s salary as traveling salesman, alleging that he had been employed for one year but had been discharged by the defendant before its termination, without cause.

The defendant’s answer contains first the general issue, and then further avers, substantially, that the plaintiff had been employed on November 15, 1880, for one year, by Moriarty & Craft, to whose business he (defendant) succeeded. That after the expiration of the year he did not retain plaintiff longer in his employment, but declined doing so.

That he was willing to engage him for another year upon different terms, but that after the term of his service had expired the plaintiff avoided him and gave him no opportunity of speaking to him about it. That finally discovering that there had been delays on plaintiff’s part in making returns of his collections, on 24th of December, 1881, he informed plaintiff that he would not employ him “any further on any terms” — the last sentence being a literal quotation from the answer.

The facts appear to be these:

The plaintiff, previous to his employment by Moriarty & Craft, was conducting a retail store in the parish of Assumption; that some time in the fall of 1880, he had some conversation with these parties looking to an engagement with them; that in the course of it plaintiff informed them that he was comfortably and permanently situated where he was, and that he would work for no house except by the year. A few days after he received the following communication:

Office of MoriartW& Craft,

Wholesale Grocers and Importers, Nos. Ill and 113 Poydras St.,

New Orleans, October 23, 1880.

G. 1?. Alba, HJsq., Nwpoleorwille:'

Dear Sir — We have talked the matter over, and will engage you (at $1800) per year. So please come to New Orleans and make arrangements. Drum around and bring few orders when you come to town.

Truly yours, MORIARTY & CRAET.

Craft.

Please excuse brevity, as it is nearly 12 o’clock.- -C.

The plaintiff, in response to this letter, came to the city, accepted the proposition it contained and entered upon the duties of his employment on the 15th of November of the year mentioned. He continued in the active discharge of these duties throughout the year.

In October, .1881, Moriarty bought out Craft’s interest in the concern and mentioned this fact to the plaintiff, and spoke of continuing him in his employment.

After the expiration of the year, plaintiff remained in the establish, ment, making his usual trips to the country and reporting orders as before, and without any further agreement with the defendant, when on the 24th of December he was discharged. Before that date the defendant had mentioned to him that the time of his first engagement was out, but did not propose any new terms touching his employment and salary, expressed no dissatisfaction with him, at least to the plaintiff himself, and delivered Mm on one occasion samples to be taken with Mm on one of his country trips. There was no want of opportunity between the end of the first year’s engagement and the date of plaintiff’s discharge for defendant to have submitted a proposition to him as to any change of terms or any new arrangement he might- wish to make, and no evidence of any effort or design on the part of the plaintiff to avoid the defendant, as charged. The answer of the defendant, and especially the part literally quoted above, virtually admits that defendant regarded the plaintiff as still in his employ until the 24th of December.

It is also shown by Moriarty’s own testimony that at the time he dismissed the plaintiff he had not been informed about the alleged irregularities in his collections, charged in the answer against the^plaintiff, and therefore they could not have entered into the reasons for his discharge. Even if they had, the evidence shows that they were not of a character to have justified defendant’s action, and were really an afterthought and an evident pretext. The plaintiff, by the terms of the letter evidencing the contract, was employed, not for one year, but at $1800 per year. It was, therefore, a continuing contract from year to year, until terminated by mutual consent or by timely notice given by either party at or before the expiration of the year.

The case was tried by a jury, who returned a verdict for the plaintiff for the amount of his salary as stated in the agreement, subject to a credit admitted by the plaintiff.

After a critical examination of the entire evidence, we do not see how a different verdict could have been returned.

An amendment in the phraseology of the judgment is asked for by plaintiff, to the effect that by its terms it be given against Daniel Moriarty, instead of D. Moriarty & Co., as rendered in the district court. This amendment is a proper one.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended by substituting for the words “ against the defendants, D. Moriarty & Co.,” the following: “against the defendant, Daniel Moriarty, doing business under the name of D. Moriarty & Co.;” and as thus amended it be affirmed, with costs in both courts.