Nemanick v. Christensen

[845]

WARD, J.

This is an appeal by plaintiff from a judgment for the defendants after verdict by a jury.

The complaint sets forth a cause of action for an alleged breach of an employment contract whereby defendants employed plaintiff as a broker to dispose of certain packed and unpacked vegetable products in Monterey County. Plaintiff was to act as general manager, but under the “suggestions or directions” of defendants, during the calendar year 1946, and, subject to certain conditions, for the years 1947 and 1948. The amended answer admits the allegations of the complaint, the existence of the written contract, and alleges: “. . . that on the 18th day of April, 1947, plaintiff voluntarily and of his own accord, terminated his employment under said contract and at said time notified defendants that he was quitting said employment as of the 18th day of April, 1947, and that after said date, defendants could not further use the labels registered in the name of the plaintiff; . . . admit that plaintiff has heretofore offered to perform the terms, requirements and conditions of said contract on his part to be performed but allege that said offer was made subsequent to the time that plaintiff voluntarily terminated said employment and further, that at the time said offer was made, defendants had already employed a third person to perform the duties of plaintiff under said contract.”

The indirect cause of the trouble between plaintiff and defendants arose over a claim made against the defendants by one Wynn, a watchman, for services rendered. Plaintiff advised that the claim should not be paid. On April 18, 1947, defendants reached the conclusion that it should be paid and directed plaintiff to make out a cheek for the amount. One of the defendants testified: “And I told him that we had decided to settle it for him to go ahead and have a check made out and signed and sent it in, that we wanted it settled. So then he was very calm in answering that afternoon. In answering, he says, ‘If that’s what you fellows think of my judgment and management,’ he says, ‘I am quitting.’ So we didn’t say anything and he didn’t say anything for probably a minute or so. Then he brought up that—oh, I think he repeated again that—something about that he had 22 years experience in the business. And so I answered him again and told him that we wanted it settled and go ahead and make a check out and have it sent in. So then he thought that over for a couple of minutes and very calm he says, ‘Well, if that’s the case, I am quitting, and I am quitting tonight. I’ll finish the day