Strauss v. Meertief

64 Ala. 299

• Court: Supreme Court of Alabama
• Decided: December 15, 1879
• Status: Published

Opinion

BRICKELL, C. J.

These causes between the same parties, founded on an averment of separate breaches of the same contract, were argued and submitted together. The case of the plaintiff, as he gave evidence tending to support, and as is alleged in his complaints, is, that on 2d day of November, 1877, the defendant, Meertief, contracted with him for the services as a clerk of his minor son, Isaac Strauss, for a term of twelve months, then commencing, at and for the sum of three hundred dollars, payable in monthly installments of twenty-five dollars. The first case was an action for the recovery of the wages claimed to be due for the month of June, 1878; the second, for the installment of wages claimed to be due for the month of August, 1878. It is averred that, in May, 1878, the defendant, without cause, discharged said Isaac from his service, and refused to permit him to perform said contract.

On the trial of the first cause, the defendant offered evidence tending to show that, after the discharge of said Isaac, he had opportunity of employment, and that such offer of service was declined. To the introduction of this evidence, the plaintiff objected; but his objection was overruled, and the defendant was permitted to prove that, some time in May, 1878, there was an offer made by one Brock, to plaintiff and his son, to employ the son for a year, at the rate of three hundred dollars ; and another offer, during a bankrupt’s sale, to employ him at the rate of fifty-four dollars per month.

It is not matter of doubt, that when a contract is made for personal services, for a particular term, at stipulated wages, if the party employed is, without cause, discharged during the term, he has the right to regard the contract as broken, and may immediately sue and recover all the damages resulting from its breach, which he may sustain up to the time of the trial, But he is not compelled to accept the breach of his employer, as a termination of the contract: he may elect to treat it as continuing, and, keeping himself in readiness to perform the contract on his part, may recover the wages due on the expiration of the term. — Davis v. Ayres, 9 Ala. 292; Ramey v. Holcombe, 21 Ala. 567; Fowler v. Armour, 24 Ala. 194. And if the wages are payable by installments, he may sue for and recover each installment, as it becomes due. Davis v. Preston, 6 Ala. 83.

2. In this class of cases, the general principle applies, that whoever seeks redress for an injury from the conduct of another, is under a moral and legal duty to use due diligence in preventing loss thereby. — Sedgwick on Dam. 105. It is only direct damages resulting from the breach of the contract which are recoverable. These are a full compensation for the wrong. A party having it in his power, by ordinary care and diligence, to take measures by which the loss will be less aggravated, cannot content himself with inaction. The wrong does not absolve him from all duty to him from whom it may proceed. The logic, justice and equity of the principle are strongly stated and illustrated in Miller v. Mariner’s Church, 7 Green. 55, by Weston, J.: “ If the party injured has it in his power to take measures, by which his loss may be less aggravated, this will be expected of him. Thus, in a contract of assurance, where the assured may be entitled to recover for a total loss, he, or the master employed by him, becomes the agent of the assurer, to save and to turn to the best account such of the property assured as can be preserved. The purchaser of perishable goods at auction fails to complete his contract; what shall be done ? Shall the auctioneer leave the goods to perish, and throw the entire loss upon the purchaser ? That would be to aggravate it unreasonably and unnecessarily. It is his duty to sell them a second time; and if they bring less, he may recover the difference, with commissions and other expenses of resale, from the first • purchaser.. If the party entitled to the benefit of a contract, can protect himself from a loss arising from a breach, at a trifling expense, or with reasonable exertions, he fails in social duty if he omits to do so, regardless of the increased amount of damages for which he may intend to hold the other contracting party liable. Qui non prohibet, cum prohibere possit, jubet. And he who has it in his power to prevent an injury to his neighbor, and does not exercise it, is often, in a moral, if not in a legal point of view, accountable for it. The law will not permit him to throw a loss, resulting from a damage to himself, upon another, arising from causes for which the latter may be responsible, which the party sustaining the damage might, by common prudence, have prevented.”

In our own own case of Murrell v. Whiting, 32 Ala. 66, this principle — that a party entitled to, and claiming the benefits of a contract, is bound, if he can with reasonable exertions, to protect himself from the loss proceeding from its breach— is fully recognized. The reason and justice of the principle must find repeated illustrations in the business of life. Take this case. The son was employed as a clerk, for the term of one year. Before the expiration of the term, he is, as alleged, discharged without cause. If he had been permitted to continue the service, he could have earned, and the plaintiff would have been entitled to, the stipulated wages; no more, and no less. Discharged, the only loss for which, in this action founded on the contract, compensation can be claimed, is the wages which would have been earned. But the next day, or at any other intermediate period, like employment, at the same, or greater wages, by a party as to whom there is no just exception, is offered him ; or he can obtain it, by the exertions made ordinarily by men out of employment. What damages has he sustained, except the loss of wages when the act of the defendant left him necessarily unemployed ? He may not continue unemployed from choice, merely to recover from the defendant the wages he had contracted to pay. Neither good morals, nor the law, will countenance him in persisting voluntarily in idleness, that the amount of his recovery from the defendant may not be diminished. When compensation was given him, for the time he was necessarily employed, all the demands of justice are satisfied. — Shannon v. Comstock, 21 Wend. 457; Costigan v. Mohawk & Hudson R. R. Co., 2 Denio, 609; Jones v. Jones, 2 Swan (Tenn.) 605; State v. Powell, 44 Mo. 436.

3. We must not be understood as intimating, that he is under the duty of engaging in, or accepting, any other employment than such as may be of the same nature and description of that in which he was employed by the defendant; or employment of that kind, at a place different from that in ■\Vhich the employment of the defendant contemplated his remaining during the term. The father, hiring his minor son as a clerk to a merchant, may justly be presumed to have in view the acquirement by the son of knowledge and skill in that particular business. This will often be a more material consideration, than the wages the son can earn during minority. That for the son there was offered, or could with reasonable exertions have been obtained, employment as a laborer on a farm, or as the employee of a railroad company, or a workman in a machine shop, or as an operative in a factory, or in any service not of the same kind, and not affording to the son like advantages for the acquirement of knowledge and skill as a merchant, can not and ought not to furnish a ground for the diminution of the plaintiff’s recovery. There is much of personal trust and confidence reposed by a father in engaging his son in the service of another. It must be, if sheer indifference to the welfare of the son is not imputed, a material ingredient of all such contracts. Because of the personal trust, which enters into a contract of apprenticeship, the law holds it is not assignable by the master. Tucker v. Magee, 18 Ala. 99. Any reasonable objection, because of capacity, reputation, mode of dealing and transacting business, or of habits or morals, which could be made to the person from whom employment could be obtained, would afford a justification to the plaintiff, for rejecting it when offered, or excuse him from not making exertions to secure it. There can be, only with “ a trembling hand,” an interference with, or control taken of the discretion of a father, in the determination of that which is the best for his child.

4. If the evidence offered had been, as first proposed, merely that the son bad opportunity of service, which he declined, it ought not to have been received. It is the defendant claiming that the plaintiff cannot recover, or that the measure of his recovery shall be reduced, because of facts occurring after a confessed breach of contract. The burden of establishing such facts rests upon him, as of any other fact which is in confession and avoidance. The evidence first offered, to which objection was made, on its face was irrelevant. It was not, so far as disclosed, of a service the father could be held bound to accept. It may be, it was the offer of a service so foreign to that in which the defendant had engaged to employ the son, that from its very nature the father could have refused it. Nor was the offer of employment made to the father, but to the son, who, without the consent of the father, had not capacity to accept or reject it. But, though the proposition may have been of evidence which was irrelevant, yet, if the evidence given was relevant and admissible, the error of the court would be error without injury. The evidence introduced was of an offer of employment which the father rejected, assigning no other reason for the rejection, than that it might interfere with his claim against and right of recovery from the defendant. The evidence was admissible; and if there was any other reason for not accepting the offer of employment, than that assigned when it was refused, it could have been shown by the plaintiff.

It results from the views we have expressed, that in the first case the Circuit Court erred in refusing the first charge requested by the plaintiff, but that there was no error in refusing the second and third charges; and in the second cause, that the court did not err in giving the charges requested by the plaintiff, to which exceptions were reserved.

5. The cross-examination of a witness is, of necessity, largely under the control, and within the discretion of the primary court; and appellate courts are reluctant to review and reverse their action, in limiting or enlarging its area, when the purpose is to show the bias, or motive, or to impeach the witness. Much must depend on the conduct and attitude of the witness during the examination; and much may depend on the course of the cross-examining counsel. We are disinclined to review and reverse the action of the Circuit Court in its rulings in reference to the questions propounded on cross-examination to the plaintiff, and to his son; as we would be, if the questions had been allowed. — 1 Whart. Ev. § 528.

6. There -was no necessity that the defendant, at the time of discharging the son from employment, should have assigned any special reason for the dismissal. If such reason then existed, and was known to the defendant, it justified the dismissal, though it may not have been then assigned. The fact that he assigned, as the cause of dismissal, only the want of business, will have more or less tendency to show that there was no other cause for it, and will cast more or less doubt upon the evidence that there was a justifying cause, growing out of the conduct of the son. These are matters for the consideration and determination of the jury ; and the assertion by the defendant of a particular cause lor it, at the time of the dismissal, does not estop him from showing misconduct on the part of the son, which would justify it.

7. The general principle invoked by the appellant in the second case, in support of the correctness of the charge he requested, and which was refused, cannot be doubted. A judgment, as between parties or privies, as a plea or bar, or as matter of evidence, is conclusive, not only of the questions actually litigated, but of all questions within the issues, which could have been properly litigated and determined. — Trustees, &c. v. Kellar, 1 Ala. 406; Chamberlain v. Gaillard, 26 Ala. 504; Wittick v. Traun, 25 Ala. 317; Hutchinson v. Dearing, 20 Ala. 798. But, that a judgment in one action shall be conclusive in another, when only the record is relied on as a bar, it must appear with reasonable certainty, not as mere matter of inference, that the questions in the second suit were litigated and decided in the first suit. If the record does not, on the face of it, bear certain evidence of this fact, it may be aided by parol evidence; and the burden of proof rests on the party holding the affirmative. — Strother v. Butler, 17 Ala. 733; Chamberlain v. Gaillard, supra; Davidson v. Shipman, 6 Ala. 27. The record of a judgment is not evidence of any matter which was incidentally cognizable in the course of the proceedings leading to its rendition ; nor of matter which, from the judgment itself, is to be inferred by argument. Duchess of Kingston's Case, 2 Smith’s Leading Cases, and notes, 609 ; McCravey v. Remson, 19 Ala. 430.

8. It is doubtless true, that the issues in the first suit, the judgment in which is relied on as a bar, were broad enough to cover the question whether there was a contract made by the defendant for the employment of the son of the plaintiff; and they were broad enough to comprehend various matters of defense directed only to the right of recovery for that particular installment of wages, and which would not affect. the right to recover other installments. If, as in the case of Rakes v. Pope, 7 Ala. 161, it appeared by parol evidence, in aid of the record, that the existence of the contract was the only matter of controversy in the first suit, the judgment would be conclusive. There is no such evidence; the fact is to be inferred from the general verdict in favor of the defendant, which is good, can be supported, and would, when necessary, be referred to any good plea the defendant may have pleaded. We do not inquire whether the appeal affected the force and effect of the judgment as a bar, or as evidence of a former judgment between the same parties. We hold that, as it did not appear with reasonable certainty that the existence of the contract between plaintiff and defendant was litigated, and the ground of the verdict and judgment in the first suit, the judgment in that suit did not operate as a bar to the second suit.

The result is, the judgment in the first case must be reversed, and the cause remanded; and the judgment in the second case must be affirmed.