Stewart & Co. v. Exum , 132 Ga. 422 ( 1909 )

Lumpkin, J.

J. B. Exum brought suit against Stewart & Company, alleging that the defendants had employed him on or about August 25, 1905, to act as a cotton buyer for them, with his headquarters at the town of Lyons; that his employment was to continue for four months, and his compensation was to be a salary of $50 per month and a commission of fifteen cents per bale upon each bale purchased; that he faithfully performed his duties until on or about the 6th of October, when the defendants ceased to use his services, and without legal justification abandoned their contract. The defendants admitted that they had employed the plaintiff, but denied the terms of the employment as stated by him. They alleged that they negotiated with him orally in regard to the employment, but that the contract was reduced to writing; that he was, not to receive a salary, but fifteen cents per bale as commission on each bale of cotton purchased by him; that the continuance of the employment was to be only as long as the services of the plaintiff were satisfactory to the defendants, and not for four months. They denied that he faithfully performed his duties, but alleged that he was ignorant, inefficient, and incompetent; that his work was full of errors costly to them; that on October 11 they discontinued the employment, under the terms of the contract, because his services were not satisfactory, and also because he failed to reimburse them for the amount lost by them on account of his errors in the transaction of their business. They sought to recoup such alleged losses. The evidence was conflicting. The jury found for the plaintiff $207.27. The defendants moved for a new trial, which was refused upon the writing off of certain items by the plaintiff; and the defendants excepted.

1. The court refused to allow one of the defendants to testify that “I have never made a contract with any man to buy cotton for me, except in writing.” This was complained of as error. The witness had testified positively that this particular contract was in writing, and other evidence had been introduced on that subject. It was immaterial for him to state what contracts he had made with others. Sometimes it is competent to show that a particular thing was done by showing that the person claiming to have done it always so acted under certain circumstances. As, for instance, if one should testify that he wrote a letter, stamped it, and gave it to his clerk to mail, although the clerk might not remember the particular letter, he -might testify that he mailed every letter which was given to him by his employer. Proof of custom or practice may sometimes be admissible to throw light on questions of detail or particular acts falling within the custom. But, under the testimony in this case, there was no error in rejecting the evidence offered.

2. During the time involved in the controversy the defendants consented for the plaintiff to perform some other work, taking a small part of his time. One of them offered to- testify that this consent was based on the construction placed on the contract by the defendants, namely, that the defendants had no objection to the plaintiff’s going into other business if they were paying him fifteen cents per bale for cotton as a commission, but they would have objected if they were paying him $50 per month and also fifteen cents per bale. This was properly excluded. There was no evidence that such a construction of the contract was stated to the plaintiff as the basis of the consent given by the defendants. Their reasons, not communicated to the plaintiff or known by him, were inadmissible.

3. The judge charged the jury as follows: “An employer is not legally justified in discharging an employee before the expiration of his term of employment, except for good and sufficient cause, and the jury are the exclusive judges of what is a good and sufficient cause, basing their judgment upon the evidence in the case, and They are to judge of the value and weight of the evidence.” He nowhere in his charge submitted to the jury the contention of the defendants that they had the right to terminate the contract of employment when the services of the plaintiff were not satisfactory to them. The defendants made this a distinct issue in their pleadings, and introduced evidence tending to sustain the allegation. If this right formed a part of the contract between the plaintiff and the defendants, they could terminate the employment of the plaintiff when his services became unsatisfactory to them; and they would not be liable for so doing. Mackenzie v. Minis, ante, 323 (63 S. E. 900). It is not held that the defendants could receive the plaintiff’s services for a time, terminate the further employment on the ground of dissatisfaction, and refuse to pay anything for his services while they were accepted and received. That is not claimed in this case. Here, as in the case of Mackenzie v. Minis, supra, the question was as to the right of the employers to discharge the employee or terminate the employment, when the services rendered were unsatisfactory to them. The defendants were entitled to have their contention on that subject submitted to the jury. The charge of the court practically excluded it, and left the jury to determine what was a good and sufficient cause for discharge, or, at most, to restrict the ground on which the contract could legally be terminated by the defendants, before the expiration of four months, to “such incompetent or inefficient services or misconduct of the plaintiff as would justify them in so doing.”

4. There were other grounds of the motion for a new trial, but, when considered in connection with a note of the presiding judge and the requirement that the plaintiff should write off certain items of the recovery, they do not require a reversal. As the ease will be remanded for another trial, we do not discuss the evidence. Judgment reversed.

All the Justices concur.