Sexton v. Richardson

[460]

ALLEN, P. J.

Action on a contract. Judgment for plaintiff, from which defendant appeals upon a bill of exceptions.

The contract between the parties was in writing, and was one for employment at a fixed salary. The services to be rendered by plaintiff to defendant were those of foreman and landscape gardener; plaintiff to take charge of the property of the defendant and give his whole time and attention to the work, and plaintiff stipulated that he would keep in perfect repair the premises and the roads and highways on such-premises. The plaintiff, in addition to his salary, was to be furnished with a house in which to live, a horse and vehicle for his personal use, and a cow for the use of his family. The term of employment was to extend from April 24, 1905, to the corresponding day of the succeeding year. It is averred by plaintiff that he duly performed all of the obligations of the contract imposed upon him, but that he was discharged by defendant without cause, to his damage in the sum of $400; that, in addition, the consequent outlay for a house for his family, and for a horse and buggy for the unexpired term of employment, aggregated $190; and, in addition, $88 of salary earned before his discharge was unpaid; on account of all of which a judgment was asked in the ston of $678.

The defendant by his answer raised an issue as to the discharge without cause and as to the amount of damage, and by way of counterclaim averred that by reason of the failure of the plaintiff to carry out his part of the contract defendant was damaged in the sum of $750. The jury found in plaintiff’s favor and returned a verdict for $566, upon which judgment was rendered.

The first point argued upon the appeal is: That the court erred in admitting testimony on the plaintiff’s part that, while he had not kept the premises in perfect repair, yet the omission in that regard was occasioned by the defendant’s acts in requiring the performance of work and labor outside of his employment which so occupied the time of plaintiff that he was not able to fully keep the premises and roads in perfect repair, and by the fact that to keep the premises in perfect repair required work and labor in addition to that possible by plaintiff’s personal efforts, it being insisted that, the complaint alleging full performance, no evidence was admissible justifying the nonperformance. The employment was