Summary
In Bryan, however, the terminating party was bound to give ten days' written notice prior to termination, and the court based its award of damages on the ten day notice period.
Summary of this case from King v. Exxon Co., U.S.AOpinion
No. 30523.
April 3, 1933.
1. CORPORATIONS.
Corporation sued on employment contract, signed by codefendant designated in body thereof as corporation's agent, held not entitled to peremptory instruction as not party to contract.
2. APPEAL AND ERROR.
Defendant cannot first raise on appeal question whether suit, dismissed as to codefendant, was against them jointly.
3. MASTER AND SERVANT.
Employee discharged without ten days' written notice, required by employment contract fixing his compensation at ninety dollars per month, could recover only thirty dollars thereunder.
4. MASTER AND SERVANT.
Discharged employee's recovery under employment contract, authorizing employer to terminate service at any time after giving notice, is limited to notice period.
APPEAL from circuit court of Montgomery county. HON. JNO. F. ALLEN, J.
Green, Green Jackson, of Jackson, for appellant.
It is well settled principle of law that where a contract of employment provides for cancellation upon the giving of notice, that for a wrongful discharge without notice, the recovery is limited to the wages accruing during the notice period.
39 C.J. 111; 18 R.C.L. 523; De Vere v. Gilmore, 54 N.Y.S. 587; Watson v. Russell, 149 N.Y.S. 388, 44 N.E. 161; Bryant Stratton Business College v. Walker, 160 S.W. 241; 35 A.L.R. 896.
Conflicting instructions cannot be given.
Ill. R. Co. v. McGowan, 92 Miss. 603, 46 So. 65; McNeill v. Bay Springs Bank, 100 Miss. 271, 56 So. 333.
It has been decided in a number of cases that the mere addition of the word "agent" or other words descriptive of representation, to the name of a person signing a contract, cannot be regarded as a certain indication that the contract was made on behalf of another, as such addition may be regarded as mere descriptio personae, and no liability be imposed on the principal by the contract.
2 C.J. 674.
The suit was predicated on a joint liability and recovery was had on a several liability, which is not permitted.
Kimbrough v. Ragsdale, 69 Miss. 674; Spann v. Grant, 83 Miss. 19; Wilder v. F.M. M.C. Harris, 112 Miss. 164, 72 So. 890.
The peremptory instruction for the Louisiana Oil Corporation should have been granted on the theory that the plaintiff failed completely, to prove his case, and the question of variance is not involved.
J.W. Conger, of Winona, for appellee.
The evidence specifically shows, and the jury decided on the disputed portions of it, that the appellee was nothing more than "laid off" awhile. It is one thing to discharge a person either verbally or orally, and quite a different thing to ask the person to lay off awhile but still hold himself ready at all times to serve, and then later given the written notice.
A corporation cannot retain complete control of business conducted at its local plant, and at the same time make the person in charge independent contractor.
Gulf Ref. Co. v. Nations, 145 So. 327; Pan-Am. Pet. Corp. v. Pate, 157 Miss. 822.
Objection that plaintiff could not recover against only one of defendants because suit was joint suit, not having been raised below, could not be considered on appeal.
Pearl Realty Co. v. Wells, 145 So. 102.
Bryan, the appellee, sued the Louisiana Oil Corporation and J.D. Sibley on a written contract of employment. This contract was signed by Bryan and by J.D. Sibley, agent. In the body of the contract it clearly appears that Sibley was the agent of the Louisiana Oil Corporation, being so written several times. The suit was filed before a justice of the peace, and judgment was rendered against both Sibley and the Louisiana Oil Corporation; they appealed to the circuit court, and judgment was there rendered against the Louisiana Oil Corporation for the amount of the suit, one hundred eighty dollars. The evidence offered by Bryan, as plaintiff in the court below, was excluded as to Sibley, and thereafter the defendant introduced its testimony when Sibley had been eliminated from the lawsuit.
The court instructed the jury on behalf of the plaintiff that, if he recovered, the amount of the verdict would be one hundred eighty dollars. On behalf of the Louisiana Oil Corporation, the court granted an instruction that, if the plaintiff recovered, the amount of his recovery would be thirty dollars.
The written contract clearly showed that the Louisiana Oil Corporation was the principal therein; it provided that either party might terminate the contract upon ten days' written notice to the other. The jury found that Sibley, as agent of the Louisiana Oil Corporation, discharged Bryan on the night of the 31st of December, 1931. Bryan received ninety dollars a month by the terms of the contract.
The appellant was not entitled to a peremptory instruction on the theory that it was not a party to the contract with Bryan. The contract and evidence clearly discloses to the contrary. The appellant insists that it was entitled to a peremptory instruction, for the reason that the suit is joint against the principal and its agent, Sibley. The appellee did not seek to establish joint liability. Appellant did not raise this question in the court below, and the suit stood dismissed as to the agent, rendering it unnecessary to amend the account filed in the justice of the peace court. It cannot raise it here for the first time. The cases of Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830, and Spann v. Grant, 83 Miss. 19, 35 So. 217, are not applicable to the facts here revealed, but the point cannot be raised here for the first time. Pearl Realty Company v. J.H. Wells (Miss.), 145 So. 102.
It will be observed that the instructions are clearly contradictory and irreconcilable. The suit is based upon a failure to give the ten-day written notice to terminate the contract of employment. Oral notice was given on December 31st. In this situation the appellee, Bryan, was entitled to recover the sum of thirty dollars, three dollars per day for ten days. The breach of the contract was appellant's failure to give the written notice.
"Where the contract of employment expressly specifies that the employer may terminate the service at any time upon giving notice, a recovery is limited to the notice period." 18 R.C.L. 523; 39 C.J. 111, and authorities there cited.
Judgment will be entered here in favor of Bryan against the Louisiana Oil Corporation in the sum of thirty dollars, in the event the appellee will enter a remittitur to that sum, otherwise the cause will be reversed and remanded.
Affirmed, with remittitur.