Wood v. Girot

THOMPSON (R. L.), J.

This is an appeal from a judgment for damages for the breach of a contract of employment.

The defendant was the owner of a garage in Sacramento. July 16, 1927, the parties to this action executed a written contract for the employment of plaintiff as manager of the

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garage for “a period of not less than one year,” at a salary of $50 per week. This contract provided that: “In the event the party of the first part (defendant) disposes of his interests in the said garage, and the purchaser does not wish to take over the services of the party of the second part, then the said party of the second part will work as truck driver and utility man for the said party of the first part at the said fifty dollars each week until such time as the unexpired portion of the said year shall have been completed.”

Pursuant to this contract the plaintiff took charge of the garage and performed the services of manager thereof for a period of about five months. The garage was then sold and transferred to one Polley, who retained the services of plaintiff for one week’s time in order to familiarize himself with the business, paying him wages at the rate specified in the contract. The purchaser of the garage assumed no legal obligation to fulfill the defendant’s contract of employment. Having completed his temporary services for Polley, the plaintiff returned and 'was set to work by the defendant driving a truck. On December 24th the defendant finally discharged him without cause, except that the defendant said there was not sufficient work to keep the plaintiff employed. Mr. Wood testified in this regard: “He told me that he was all through with the contract and there was nothing for me to do, and that he did not intend to carry out his part of the contract.” The plaintiff then industriously sought for other employment, but found no regular work until March, at which time he was hired by the Shell Oil Company at a salary of $125 a month. The difference between the salary of $50 per week for the period of fifty-two weeks which was assured by the contract and the total amount which he actually did earn, together with the sum he would be able to earn if he retained his employment with the Shell Oil Company, was $847.05.

The plaintiff did not wait until the term of employment which was specified in the contract had expired, but brought suit for damages for the breach of the contract immediately after his discharge. The complaint contained two counts. Judgment was rendered for the plaintiff on both counts. A new trial was, however, granted as to the second cause of