Opinion
13280
November 20, 1931.
Before WHALEY, J., County Court, Richland, June, 1930. Affirmed.
Action by E.O. Griswold against the Texas Company. Judgment for plaintiff and the defendant appeals.
The charge of the trial Judge requested to be reported follows:
Mr. Foreman and gentlemen: The plaintiff comes into Court and alleges that prior to June, 1927, he had been employed by the defendant for about ten years; that for the year commencing January 1, and ending December 31, 1927, the defendant had agreed to employ him for that year at a certain salary plus commissions, averaging a total of $300 per month; that on June 1st, without just cause or excuse, the defendant violated that agreement and discharged the plaintiff, although the plaintiff was ready and willing to continue with his contract. The plaintiff claims that as a result of that violation of the contract he has been damaged in the sum of $3,000; that he undertook, after his discharge, to obtain employment, but that for a part of the remainder of that year he was unable to obtain employment. He also claims that he had a certain insurance feature that he lost on account of being discharged.
That goes out of the case for the simple reason that it turns out that he lost no rights because of that, and therefore he could not have been damaged in that particular, even if his contention is proved otherwise in the case.
He also claims that he had certain stock by a plan, that in that plan he had allotted to him a certain amount of stock to be paid for in installments to be deducted from his salary, and he claims that for the year 1927, under that plan, he was entitled to an allotment of at least ten shares of the capital stock at the par value which was then $35 per share. That stock was worth approximately on the market $60, which stock he claims he was entitled to as an allotment, and which would have matured under that plan on January 1, 1928, or at the end, rather, of 1927, on December 31st.
He claims that he lost thereby, for being discharged, the difference between the par value of the stock, $35 per share, and $60, which he claims was the market value of the stock, or a difference of $25 per share.
He is asking as a total of $3,000 damages at your hands.
In answer to that claim, the defendant denies that there was any contract entered into, as the plaintiff claims, for a period of one year, but claims that there was a letter written in that year, of date February 23, 1927, copy of which is attached to the answer, and that that letter was agreed to and accepted by the plaintiff, and that what was in that letter constituted the terms of the contract or agreement between plaintiff and defendant.
The defendant denies that it has breached any contract that it had with the plaintiff, or that it owes him anything by way of damage either for a breach of contract or under this allotment stock payment plan.
The defendant claims for its contention that, under the contract which it had with the plaintiff, it had a legal right to discharge him, and that it lived up to the terms of the contract between the parties.
That answer puts the burden upon the plaintiff of proving his case, as alleged here on the contract, which he claims was in existence, that puts the burden upon the plaintiff of proving all those material matters which the defendant has denied. By that the law does not necessarily mean by the greater number of the witnesses or the greater quantity of the evidence, but by the greater truth of it; in other words, that testimony in which you six men have the greater faith.
Now, the plaintiff in his reply to certain matters set forth in the answer as to the letter of February 23, 1927, which was set forth in the answer as containing the contract, from the defendant's viewpoint, and replying to that allegation, the plaintiff claims that no such letter was signed by the plaintiff and that he was informed that such letter was sent to him and signed by his wife and returned, and that thereafter he discussed the matter with a representative of the company, and it was agreed between the representative and himself, the plaintiff, that he would not be bound by the provisions of that letter, or the terms stated in it, but that he would be employed for the full period of one year, and he continued in the employment.
So now, there you have all the different angles of the case presented to you as the parties came into Court. It is for you gentlemen to say what, if any, of those matters find substantiation in the proof, because, after all, you and I are not governed by what the parties come into Court with. It is what they bring into Court to us by way of evidence which you have to pass on, and I have to give you the law. You are to find out what the real true evidence is; you apply the law to that.
Where the parties are in dispute as to what happened, was said or done, I can have no opinion about that. You gentlemen have to form an opinion after you find out what the real truth of the situation is.
Now, the plaintiff claims that he had a contract and that that contract was oral. The defendant claims that the contract was in writing and that writing was signed by both parties. In the eyes of the law this was the letter which was signed by him. First signed and sent by Mr. Jones, and it has the name of Jones on it. The defendant claims that that was the binding contract in the eyes of the law.
The plaintiff claims that that was no contract and never became a contract, that there was no written contract, and that the contract became oral. So there are the issues that you gentlemen are going to have to decide.
Now, as to matters about which there is no dispute, I have to pass on them. Here is this letter. Read what is in it. It says certain things. Now, did that bind these parties or did it not? There is the question that you gentlemen are going to have to ferret out and answer, and it depends on how you answer it as to where you go from that point in the case.
There is no doubt about it, the letter was signed in behalf of the Texas Company by Jones and sent over here. Nobody has disputed that, and it was sent back to Atlanta from over here, and the name of E.O. Griswold was written on it. As I understand, and the attorneys can correct me if I am wrong, there is no dispute but what that name of Griswold was written by his wife on that letter when it was returned.
Mr. Tompkins: We don't admit that. We don't know whether he signed it or she signed it, but we think your Honor should charge the jury that, under their testimony, it did not make any difference who signed it.
The Court: I was coming to that. If I was wrong in thinking that, I say to you gentlemen that if you believe that Mr. Griswold himself signed that and put that in the mail, that ends his case, because he would not be able to come in and tell this Court or any other Court that he signed that with his eyes shut and had no intention of delivering it. If he signed it and put it in the mail, or saw that it got in the mail, or authorized it thereafter to be put in the mail, if he put his signature himself, his own name, at the bottom of that piece of paper, then he is bound by what is in there, and that thing says in itself that there can be no modification of this agreement unless signed by the parties thereto. So if he signed it with his own hand and put it in the mail or caused it to be put in the mail, it could never later be changed, no matter how much they talked and agreed between each other, because they had agreed that no modification or change could be made unless signed by the parties thereto.
Now, if he did not sign it himself and his wife signed it and he did not know that his wife had signed it and he did not know about the mailing of it, then we would have a different proposition that you would have to solve, because then it would turn upon whether or not, under all the facts and circumstances then existing, whatever you should find them to be, then, whether or not that piece of paper with Mr. Griswold's name on it, if you believe it was put there by his wife, whether or not that was delivered with the intention that binds Mr. Griswold, or whether it was put in the mail, because putting it in the mail would be delivering in that case, putting it in the mail at that end of the line would be delivering it as far as the manner would be concerned; if she wrote that name for Mr. Griswold, what was the intention? If she knew she had the authority to do these kinds of things for her husband, and I have to say that as a matter of law from all the testimony, that is, to sign his name. She had been doing it right along. So, if she signed his name to that, you have to go into all the circumstances to see whether or not there was the intention on the part of Griswold himself or through his agent, his wife, that that piece of paper with his name on it, signed by her, if it was put there by her and put in the mail as his acceptance of this proposition that Jones had sent over here. If you believe that she signed his name to that, that she mailed it, understanding that it was her husband's intention that it go back to Atlanta to bind him, it would bind him, because there would be the intention; again, that would be a binding contract. To deposit it in the mail here would be sufficient to make that contract unchangeable except as these parties set out thereafter in writing. As to what the intention there would be, it is for you gentlemen to say.
If you believe it was put in the mail, that she signed this name on it and it was by her put in the mail through a misapprehension on her part as to her husband's intention in the matter and it was purely a mistake, and if you believe thereafter that Mr. Griswold acted reasonably soon in notifying Atlanta of that mistake, if there was such, then the law would step in and say that this piece of paper had never become a contract, because no innocent third party's rights could come in and been taken away in that way.
Now, what the intention of the parties was in this case if she wrote that name there and she mailed it here, that matter of the intention you gentlemen have to find out. You have to go into all the facts and circumstances of the case; you will have to view the whole thing, because one's intention, like fraud, more or less resides in the mind. Sometimes it it difficult to ascertain exactly what it is. So you have to carefully go over all the facts and circumstances surrounding the parties, their dealings with one another, the subject-matter with which they were dealing, their relationship in business, if they did business theretofore, and find out what the intention was; that is, if she mailed it out and what about the signature on there, because I have already told you that if Mr. Griswold signed that thing himself and mailed it, or caused it to be mailed, he has no comeback in any Court, for any damages, because, if he did that, the law would presume that he read it, the law would tell him as a matter of common sense that it would go out in the mail, and he would know that he was going to be bound by it.
As to who signed that name, I cannot tell you. That is for you gentlemen to say.
Now, if you believe that that piece of paper never became the contract between the parties, then you would have to ascertain whether or not there was an oral contract made between some one representing this company on the one hand and Mr. Griswold here, the plaintiff, on the other.
If they entered into an oral contract and if that oral contract was that he was to get a certain amount of salary, plus commission on an average every month to be based on what he had been getting prior thereto, and that his contract was to be from January 1, 1927, through December 31, 1927, then they would have no right to discharge him during that year except for cause.
Now, in this paper here, if this paper became the contract between them, that paper says they could discharge him at will whether they had cause or whether they did not. That is the reason I say if he signed that, or if that thing became the contract between the parties, he would be out of Court.
But if they entered into the oral contract and his services were to be given for a year and he was to be paid on a certain basis for a year, as I say, they would not be able to discharge him during that year, except for cause.
Now, in a case of this character, where one has been discharged, if you believe the contract was to have it for the entire year, the burden would rest on the defendant to show you by the preponderance or greater weight of the testimony that there was cause for discharging him. Even though a man should have a contract that would run for a whole year, that does not mean that he can stay there and do as he pleases because that old principle of law has always been there that no matter how definite the period of time of working an employer can discharge for good cause. What is good cause? A man takes employment; the law presumes that he is going to be competent for the work, reasonably competent for that character of work, also that he is going to use due care around his master's business. If it should turn out that he is incompetent, reasonably speaking, for that kind of business, if it should turn out that he had neglected his master's business to the injury of their business, the master can discharge him, either of those things. But if he had a contract for a year, the master would have to show in this case that there was that good cause for discharging him.
If there was not any good cause and you believe he had the contract for a year, then they would have done him a wrong to discharge him on June 1, 1927, and, if they wrongfully discharged him, they would owe him damages.
What would be the measure of damages? Whatever you find to be the amount stipulated in the contract, whatever the contract was, if there was a breach of the contract, the law would presume prima facie that that would be the amount of damage for each month of the balance of the year, if there was a wrongful discharge.
In other words, if I am getting $300 a month and I am wrongfully discharged during the middle of the year, for example, or just after five months is up, then for the other seven months the law would presume that my loss would be $300 a month, less, however, what I actually earned in that period by getting other employment, or less what I could reasonably earn in the balance of the period by reasonable diligence on my part in attempting to get work, because the law does not even allow me, if I am wrongfully discharged under a service contract, it does not allow me to sit down with my hands in my lap and say I can get damages and do nothing. It says that I must go out myself and use reasonable efforts to get work.
In other words, the law itself does not want anybody idle. In this case, there again the burden rests upon the defendant to show you a modification of damages or reducing of damages, what this plaintiff actually earned, or what he could have reasonably earned by due diligence or reasonable effort during the seven months, the balance of that year, if he was wrongfully discharged.
Although those matters are not pleaded in the answer, yet the complaint is so drawn that the issues come in, and the issues coming in, the burden still rests where it would have been had the pleading read as the law said.
If there was a wrongful discharge, that would be the measure that you would use. Then you would add to that any loss that directly resulted, if any, on account of any stock or loss of profits as to stock. Under this stock payment plan he claims that, had he gone on until through December 31, 1927, there were eleven shares of stock which he would have owned, and that on that day he would have been able to realize $25 a share profit, or $275, I think it is. Anyway it is eleven times twenty-five.
It is for you gentlemen to say whether there was any loss in that regard, and, if so, what it was, whether $25 a share or less or whether not at all. If there was a loss and that directly grew out of his wrongful discharge, you would have to compensate him for that and add that to that other measure that I have already given you. But if he did not suffer any loss under the stock payment plan, of course, nothing would be added as to that.
Now they are asking for profits which may or may not enter into the realm of speculation in any business of that sort, and you gentlemen must be careful not to guess. If it is mere guesswork, you cannot award damages. There must be some reasonable basis upon which any damages would be awarded. That is left entirely to you gentlemen under the facts and circumstances of the case.
Now write your verdict, whatever it may be, on the back of the summons and complaint.
If you find for the plaintiff, the form of your verdict would be, we find for the plaintiff so much, writing the amount in words and not in figures, and sign your name after that and put the word "foreman" after your name.
If you find for the defendant, the form of your verdict would be, we find for the defendant, and sign your name after that likewise, and put the word "foreman" after your name.
Is there any general proposition I have left out for the plaintiff?
Mr. Winter: Nothing that I can think of.
The Court: Is there any general proposition I have left out for the defendant?
Mr. Tompkins: I don't think so.
The Court: By the way, gentlemen, I don't know whether you know what a deposition is or not. A juror told me once, and that is the reason I always charge on this now unless I forget it, that he did not think a deposition was to be used as evidence unless the witness were actually on the witness stand. Of course, that is impossible.
The law allows a deposition to be taken where the party is at a distance and does not attend Court and the deposition comes in instead. One side gives notice to the other that testimony will be taken at a certain time, both sides can be there if they want to examine and cross-examine the witness. It is taken and sworn to, and it comes in as the law provides and goes to you gentlemen. That is one legal channel that evidence comes into the courtroom. Another is where the witness is here and is sworn and is examined and cross-examined in your presence.
So it comes in by those two channels in this case and goes to you gentlemen, and you have to say what, if anything, it is worth, and both is a legal way for evidence to go to you.
Messrs. Frank G. Tompkins and Frank B. Gary, Jr., for appellant, cite: Agency may be created by implied authority: 142 S.C. 385; 133 S.C. 353; 155 S.C. 507. Party accepting benefit of agreement is estopped to deny its validity: 147 S.C. 167; 154 S.C. 424; 21 C.J., 1206; 52 S.C. 382; 19 S.C. 211; 19 S.C. Eq., 99; 63 N.Y., 221; 21 C.J., 1209, 1216; 72 S.C. 47; 43 S.C. 436. Waiver and estoppel: 21 C.J., 1240; 13 S.C. 355; 31 S.C. 153; 26 S.C. 179; 105 S.C. 416; 109 S.C. 158; 57 S.C. 125; 100 U.S. 578; 108 S.C. 300; 69 S.C. 1; 64 S.C. 438; 69 S.C. 300. Burden on plaintiff to show discharge without cause: 17 S.C. 477. Testimony as to intentions and suppositions not admissible: 60 S.C. 201; 69 S.C. 531; 68 S.C. 55; 55 S.C. 568. Best evidence: 106 S.C. 37; 22 C.J., 986. Copies not admissible where no notice to produce original: 22 C.J., 1018; 76 S.C. 308.
Messrs. D.M. Winter, P.A. Cooper and J.B. McLauchlin, for respondent, cite: Written agreement may be replaced by subsequent oral agreement: 141 S.C. 448; 140 S.E., 99; 13 C.J., 595. Burden of proof on defendant in suit for discharge: 44 S.E., 557; 62 S.E., 963. Construction placed on contract by parties competent: 140 S.C. 46e; 138 S.E., 865.
November 20, 1931. The opinion of the Court was delivered by
This action, commenced in the County Court for Richland County, March 11, 1929, is for recovery of judgment against the defendant in the sum of $3,000.00, based upon the alleged wrongful acts of the defendant in discharging the plaintiff as an employee of the defendant, the allegations of the complaint being as follows:
"COMPLAINT
"1. That plaintiff is a resident and citizen of the County of Richland, State of South Carolina.
"2. That the defendant is, and was at the times hereinafter mentioned, a corporation organized and existing under and by virtue of the laws of the State of Texas, and as such does business and has agents located in the County and State aforesaid, and said defendant corporation is engaged in the production, refining and sale at wholesale and retail of gasoline, oils and the various petroleum products, and reasonably worth several million dollars.
"3. That for about ten years prior to June, 1927, this plaintiff was in the employ of defendant and the greater portion of said time was its representative in what was known as zone No. 10, of said company, having headquarters at Columbia, S.C.
"4. That plaintiff was employed by the defendant for the year 1927, commencing January 1st, and ending December 31st of said year, at and for a fixed salary, payable monthly, plus certain commissions or bonus on all products of said company sold by plaintiff in said district, which had been built up by plaintiff so that plaintiff received altogether an average of about Three Hundred ($300.00) Dollars per month.
"5. That on the 1st day of June, 1927, without just cause or excuse, and in violation of said contract and agreement, the defendant herein dismissed plaintiff from its employ, and breached the contract and failed and refused to permit and allow plaintiff to perform his part thereof, although he was ready and willing to do so, and failed and refused to pay plaintiff the compensation to which he was entitled thereunder.
"6. That the Texas Company, defendant, had and maintained an insurance feature or policy whereby when a man died who had been in the employ of the company five years or more, his wife would draw his salary for an additional period of twelve months, which insurance had been earned and paid for by plaintiff and which plaintiff lost on account of the breach of said contract.
"7. That as additional compensation, the said defendant company allotted to each of its employees after two years' continuous service, running from January to January, an amount of the capital stock of said company equivalent in par value to ten per cent. of the amount actually earned by said employee for the preceding year and such privilege continued from year to year thereafter; that upon such allotment being made the employee of said company was given the opportunity of either paying cash for said stock, if he desired to purchase same, or of paying for same in monthly installments to be deducted from his salary, and that plaintiff had purchased on said plan approximately 30 shares of the capital stock of said company, of the par value of Twenty-five ($25.00) Dollars per share, and on account of the breach of said contract, was forced to sacrifice and forfeit the said stock to the defendant company for the amount actually paid thereon, plus six per cent. interest, when, as a matter of fact, the said stock was worth at market value approximately Sixty ($60.00) Dollars per share.
"8. That for the year 1927, under the contract above set out, plaintiff was and would have been entitled to an allotment of at least ten shares of the said capital stock of said company at par value, which was then Thirty-five ($35.00) Dollars per share, and which stock was then worth on the market approximately Sixty ($60.00) Dollars per share.
"9. That plaintiff was at all times ready and willing to perform his duties under the said contract and plaintiff attempted to procure other employment during the remainder of the time said contract was in force, and would have obtained such, but was unable to do so, and remained without employment almost all of the remainder of the year 1927, from June 1st of said year.
"10. That on account of breach of said contract and the matter herein alleged, defendant is indebted to this plaintiff, and plaintiff has been damaged and injured in the sum of Three Thousand ($3,000.00) Dollars.
"Wherefore, plaintiff prays judgment against the defendant for the sum of Three Thousand ($3,000.00) Dollars and for the costs of this action."
The transcript contains the following agreed statement of counsel as to answer filed: "The defendant in due time served a verified answer to the unverified complaint, in which it was admitted that the plaintiff had been in the employment of the defendant and had been discharged on or about the date mentioned in the complaint, but alleging that the said discharge was within the terms of the contract which they had made with the plaintiff. In said answer, the defendant set up as a defense their plan for allowing employees to purchase stock and also their plan for insurance on their employees, and alleged that no benefits had accrued to the plaintiff under the terms there, and that he had received all the compensation to which he was entitled."
The plaintiff filed a reply to the new matter set up in the defendant's answer. Issues being joined, the case was tried at the June, 1930, term of said Court before Hon. M.S. Whaley, Judge of said Court, and a jury, resulting in a verdict for the plaintiff in the sum of $1,800.00. Motion for a new trial, made on behalf of the defendant, being refused, from judgment entered on the verdict the defendant has appealed to this Court, upon exceptions, imputing error to the trial Judge in several particulars.
EXCEPTION 1
"The Judge erred in failing to direct a verdict for the defendant on the record and the grounds set out in defendant's motion therefor, the error being that the only reasonable inference to be drawn from the testimony was that there was a contract in existence in writing between the parties, which expressly provided that defendant had the right to discharge the plaintiff at any time, with or without cause, that the said written contract was acted upon and acquiesced in by both parties, and that when plaintiff was discharged by defendant, plaintiff accepted the discharge and made no claim that the defendant had no such right to discharge him under the terms of the contract then in existence; that plaintiff by accepting such compensations and stock allotment waived any right that he might have had under such amendment as plaintiff claims to have been in existence, if there was such an amendment, and thereby became estopped."
The question raised by this exception is, as stated by appellant's counsel, was there a valid contract in writing between the parties?
It is the contention of the appellant that there was a valid written contract between the parties, the provision of which gave the defendant the right to discharge the plaintiff at will, and that it acted under said right and authority when it discharged the plaintiff; whereas the respondent contends that the paper in question, relied on by the appellant as giving such authority was not executed by him and that he is not bound thereby, and, furthermore, that, under an agreement of force between the parties, he was employed for a term of one year, commencing January 1, 1927, and ending December 31, 1927. The testimony on this question was in sharp conflict. According to the contention of the appellant, the paper referred to, which purported to give the defendant the alleged right to discharge the plaintiff at will, was sent the plaintiff to be executed by him, and that it was either signed by the plaintiff or by his wife, who it claimed had authority to represent the plaintiff, and returned to the defendant by mail. There was some testimony from which such inference might be drawn. On the other hand, in support of his contention, plaintiff introduced testimony which tended to prove that no written agreement was entered into for the time in question between the parties; that the plaintiff did not sign the paper relied on by the appellant as constituting a written agreement; did not know that the same had been mailed out for him until some time after it had been returned to the defendant; that it was received by the plaintiff's wife while the plaintiff was away from home and out of the city, and through a mistake plaintiff's wife signed his name to the paper and remailed it to the defendant, without any authority from the plaintiff to do so; that, as soon as plaintiff had learned of what had been done, he took the matter up with the defendant through its regular manager in charge, and made known the mistake that had occurred, refused to be bound by the said paper and what had been done, and, as a result, the parties thereafter entered into a verbal contract whereby it was agreed between the parties that the plaintiff should be and was employed for the term of a year, beginning January 1, 1927, and ending December 31, 1927. The testimony on the question being in conflict and there being more than one reasonable inference to be drawn therefrom, the trial Judge, in our opinion, properly overruled defendant's motion for direction of a verdict and properly submitted the question to the jury.
As to the contention made by appellant, under this exception, that the alleged written contract "was acted upon and acquiesced in by both parties, and that when the plaintiff was discharged by the defendant, the plaintiff accepted the discharged and made claim that the defendant had no such right to discharge him under the term of the (alleged) contract then in existence; that plaintiff by accepting such compensation and stock settlement waived any right that he might have had under such amendment as plaintiff claims to have been in existence, if there was such an amendment, and thereby became estopped," we deem it sufficient to state that, under the testimony, all of these questions were issues for the jury. The case of Griffin v. Allendale Bank, 160 S.C. 502, 158 S.E., 813, and the other cases cited by appellant do not control the case before us.
EXCEPTION 2
"The Judge erred in charging the following principle of law: `Now, in a case of this character, where one has been discharged, if you believe the contract was that he was to have it for the entire year, the burden would rest on the defendant to show you, by the preponderance or greater weight of the testimony, that there was cause for discharging him — but if he had a contract for a year, the master would have to show in this case that there was good cause for discharging him,' the error being that the same was an incorrect proposition of law which was prejudicial to defendant."
A reading of the entire charge, which will be reported with the case, shows that the trial Judge placed no greater burden on the defendant than the law requires. The burden was on the plaintiff to prove, by the greater weight of the evidence, that he had a contract with the defendant for a term of one year, as plaintiff alleged, but once this allegation was proven, if it was so proven, it was then incumbent on the defendant to prove by the greater weight of evidence that there was just cause for the plaintiff's discharge in order to be relieved of liability to the plaintiff in damages growing out of such alleged unlawful discharge. In connection with his Honor's charge to the jury, attention is called to the cases of Latimer v. York Cotton Mills, 66 S.C. 135, 44 S.E., 559, and Puryear v. Ould, 81 S.C. 456, 62 S.E., 863.
EXCEPTION 3
"The Judge erred in admitting, over objection of the defendant, the testimony of the plaintiff as to his intentions of what he would have done in the absence of the alleged promise of Jones, the agent of the defendant; the error being that the same was incompetent, inadmissible and highly prejudicial to the defendant."
This exception is too general, and is objectionable upon that ground, but, waiving such objection, the exception cannot be sustained. In our opinion, it was proper for the plaintiff to explain to the Court and jury the effect the promises made by the defendant, through its manager, Jones, had on the plaintiff and how such promises shaped his course of action.
EXCEPTION 4
"The Judge erred in admitting, over defendant's objection, the testimony of plaintiff concerning the provisions and operation of the stock allotment plan, the error being that the same was inadmissible and not the best evidence, and was prejudicial to the defendant, the stock allotment plan being in writing and speaking for itself."
The trial judge seems to have ruled with the appellant as to the admission of the testimony now complained of, except as to the plaintiff's understanding of the difference in the two stock allotment plans, and it was upon this that he was allowed to tell what he knew about it; it not being clear as to the difference in the two plans. At this juncture it appears that the trial Judge stated, in effect, that he would construe the papers. We are unable to see wherein the defendant was prejudiced. In this connection attention is called to the case of McGregor v. Hurst, 140 S.C. 464, 138 S.E., 865.
EXCEPTION 5
"The Judge erred in admitting, over defendant's objection, copies of stock allotment, the error being that the same were only copies, no notice to produce the original was served nor proof of loss made, defendant was unprepared and taken by surprise, and the admissions were highly prejudicial to defendant's case."
It appears that the papers referred to under this exception, called "stock allotments," and signed by the defendant, were furnished the plaintiff by the defendant, and, also, that they were duplicates of the originals. In either case, they were competent evidence, and the trial Judge committed no error in allowing the same to be introduced in evidence.
The remaining exceptions, 6 and 7, appear to have been abandoned. We may state, however, that, in our opinion, the same are without merit.
The exceptions are overruled, and the judgment of the lower Court affirmed.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE STABLER concur.
The evidence of waiver on behalf of the appellant was very strong, and I am inclined to think the issue as to that should have been decided by the jury in its favor. But "unless * * * waiver * * * is practically conceded * * * or the evidence shows it without question * * * when an issue of that kind is raised," the party against whom waiver is alleged "should have the * * * right * * * to have a jury's decision." Walker v. New Amsterdam Casualty Co., 157 S.C. 381, 154 S.E., 221, 225.
It is with reluctance that I dissent from the main opinion in this case, written by Mr. Justice Carter. Aside from the high regard I have for his opinions, there are certain factors in this case which add to the reluctance with which I dissent from the affirmance of the judgment of the lower Court. I have little patience with that harsh class of contracts in which the employer reserves the right to discharge his employee at his will or whim, with or without cause. Such a contract figures in this case as a dominant element. A cardinal question is whether there was a written or an oral contract for the year 1927 between the parties plaintiff and defendant here, and whether plaintiff by his conduct in connection with such contract has debarred himself of the right to maintain this action. I think he has; hence this dissenting opinion.
Plaintiff had been in the employ of defendant, hereinafter spoken of as the company, for a period of ten years up to the year 1927. Each year the parties had entered into a written contract which contained the provision that the company might discharge plaintiff at will, with or without cause. Some time in February, 1927, the company's manager sent from his office in Atlanta, Ga., to plaintiff at Columbia, S.C. a written contract for the year 1927 in terms exactly like those which had been in use between them for ten years. It was already signed by the proper officers of the company. It was returned to the company with the name of plaintiff signed to it. Plaintiff claims that the copy of the written contract came to his office in his absence; that his wife, who assisted him in the clerical work of his business and sometimes signed his name to papers, signed his name to this contract and returned it without his knowledge; that upon his return home he learned of this and immediately notified the company's manager, Mr. Jones, that he had not signed the written contract, and would not be bound by it; that he objected to the provision which gave the company the right to discharge him at will, and demanded a contract for a year, to begin January 1, 1927, and end December 31, 1927; that negotiations were carried on verbally, in person and over the phone; that Mr. Jones acceded to plaintiff's demands that the contract be amended to state that the period of plaintiff's employment extended from January 1, 1927, to December 31, 1927; that Mr. Jones promised to write him a letter to this effect, but never did it; that with the exception of this change the contract remained as written. The defendant denies that any change in the contract was suggested or made. That issue was submitted to the jury and found against defendant. In the view which I take this makes no difference.
The contract contains a provision that employees of a certain standing of time in point of service with the company should have the right to have allotted to them shares of the stock of the company which could be paid for in cash or by deduction from the monthly salary of the employee. Plaintiff had certain allotments made to him for the payment of which deductions were made from his monthly salary. The stock had not been paid for when he was discharged. It was a condition of this provision that, if the employee was discharged, or left the employ of the company before he had paid for the shares allotted him, he should receive back the money he had paid with interest at 6 per cent. There was also a provision relating to the insurance of the employee, but, on the trial of the case, the trial Judge eliminated the claim of plaintiff to recover on that score, and there is no appeal from his ruling.
When plaintiff was discharged in June, 1927, the company settled with him by paying him the salary then due him and the money he had paid on his stock allotments, with 6 per cent. interest. The plaintiff did not then demand any other settlement, nor make claim for any other thing due him by the company. He accepted the settlement and retained the money, and to this day has not offered to return it.
March 11, 1929, nearly two years after his discharge, he brings action to recover what he claims was due him as salary for the balance of the year 1927, and for certain profits which he alleged he lost on his stock allotments because he was not allowed to complete paying for them, and for some time on the insurance provision of the contract. The last item was, as hereinabove stated, eliminated at the trial.
Defendant moved for directed verdict on the ground, among others, that plaintiff, having accepted his discharge and the settlement made with him under the terms of the contract, had waived any other claims and was estopped to maintain this action. There were other grounds of the motion, but this is the only one I shall consider. After verdict for plaintiff, defendant moved for new trial on practically the same grounds as those upon which his motion for directed verdict was predicated. That motion, too, was overruled. Then followed this appeal.
When plaintiff settled with the company for the salary then due him and return of the money which he had paid on his stock allotments, with the interest thereon, he settled upon the terms of the contract as he himself had had it amended. He knew what were the provisions relating to the stock allotments and to settlement in case of discharge or resignation of the employee. He did not then say, "I refuse your money, I demand the right to continue in your service under the amended contract and complete the payments for my stock allotments so that I may have whatever profits or benefits may then accrue." He and his wife testify that, when he received the letter of May 28th discharging him, they went to Atlanta to see the manager, Mr. Jones. He was absent. She talked to him over the phone. She testifies that Mr. Jones said: "Go back to Columbia and let things go as I have planned, Mr. Ingram will be there Tuesday, I will work something out for Mr. Griswold." She did not say, "You cannot discharge Mr. Griswold; his contract is for the year." She knew Mr. Ingram was coming to check Mr. Griswold out because he was discharged. The utmost that can be deduced from her testimony is that they relied on Mr. Jones to work out something for Mr. Griswold. That in itself is an acceptance of the discharge and a tacit acknowledgment of the right to discharge him. He accepted the settlement, took the money, and has retained it till this day.
To my mind this is a typical case of waiver, the voluntary relinquishment of a known legal right; and from this premise follows the corollary that plaintiff has now estopped himself to assert this claim.
He who does not speak when he should will not be heard to speak when he would.
I think the judgment below should be reversed.
MR. JUSTICE COTHRAN concurs.