Foringer v. New Kensington Stone Co. , 223 Pa. 425 ( 1909 )

Opinion by

Mr. Justice Potter,

In this case the terms of a contract of employment were in dispute. The verdict of the jury established the fact that plaintiff had a contract with the defendant company for a fixed term of three years, and that he was discharged without cause, at the end of one year of the term. Suit was brought and the case was tried more than a year prior to the expiration of the contract. The plaintiff admitted on the trial that after his discharge by the defendant company he secured employment in a like capacity elsewhere, by which he earned the sum of $720 and that he quit that employment of his own accord. The trial judge reduced the verdict by deducting therefrom the amount admitted to have been earned after the discharge.

Appellant complains, in the first assignment of error, of the refusal of its first point for charge to the jury which was as follows: “A party seeking compensation from a corporation under a contract made with an officer of the corporation, for a breach of the contract and not for services actually rendered the corporation, must not only establish the contract, but must also establish the authority of the said officer to make the contract.” The trial judge answered it by saying, “under the facts of this case, this point is denied.” Considered in the abstract, the point presented a sound proposition of law. But in this instance it appears that the plaintiff testified that his contract was made with the secretary and the president of the company, and that all the directors had knowledge of it. .That while the proposition was pending the company wrote that he would hear from them when the water question was settled, and later it wrote to him, “Relative to your verbal proposition to our company, have every reason to believe we will accept same unless it would be in regard to boarding house.” When the proposition was accepted, and plaintiff entered upon his duties, no objection was made on the part of anyone in the company. His services were rendered and accepted throughout the year, and the letter written to him at its expiration telling him he would not be needed after December 1, 1906, expressly recognized a contract of employment. After having had the benefit of his services and making to him the stipulated compensation for the first year, the company could not repudiate the contract which had been made by its officers. In fact the issue submitted for the determination of the jury was not whether there was a contract of employment, but it was as to what that contract actually was, and as to its extent. The point submitted, therefore, had no specific application tqthe precise issue which was being tried, and there was no error in refusing to instruct the jury in the manner requested. ■

In the second assignment of error, complaint is made of the refusal to instruct the jury that the amount earned by plaintiff after his discharge, or that which he could reasonably have earned elsewhere, during the term for which the contract was to run, should be deducted from the amount of compensation agreed upon in the contract. It is conceded that this was error, but it is argued that it was cured by deducting the amount actually earned elsewhere from the verdict; and as to the further earnings plaintiff might have made, he is excused on the ground that the burden of proof was upon the defendants. That the general rule is so is indisputable; but it should not apply where it is admitted by the plaintiff not merely that he might have found other employment but that he actually did so; and though it was apparently more profitable than that with appellants, he left it voluntarily for a reason which hardly seems to be sufficient. The excuse given by plaintiff, that he expected this case to come on for trial, would hardly warrant his abandonment of a permanent situation. It would be strange if a reasonable leave of absence could not have been obtained to attend the trial. It was at most a matter to be submitted to the jury, as to the sufficiency of the reason advanced for giving up his employment. We think the admission of the plaintiff that he secured other employment, which he might have retained, should have been submitted to the jury with the same force and effect as though it had been proven by the defendant. And for this reason we sustain the second and fourth assignments of error.

Counsel for appellant allege in the fifth assignment, error in the exclusion of a deposition offered in evidence at the trial. This assignment violates the rule, in that it does not refer to the page of the appendix where the matter can be found: Downey Bros. v. Penna. R. R. Co., 219 Pa. 32; Cameron v. Traction Co., 216 Pa. 191. But in any event the exclusion of the deposition was put upon the ground that the witness was a resident of the county, and no reason was shown for his absence from court. Under these circumstances the exclusion of the deposition was a proper exercise of the discretion of the trial court.

By reason of the error pointed out in the second and fourth assignment's the judgment is reversed with a venire facias de novo.