Nash v. Kreling

BRITT, C. The trial of this case resulted in a verdict and judgment for defendant. Plaintiff avers that defendant employed him for a term of two years, beginning August 6, 1894, to be stage manager of a theater conducted by her, known as the “Tivoli Opera House,” in the city of San Francisco, at a salary of $90 per week for the first year, and $100 per week for the second. On June 2, 1895, she discharged him from said employment; and he sues in this action for alleged damages sustained by reason of such discharge during twelve weeks, beginning July 1, 1895, amounting, at the alleged rate of salary for that period, to $1,150. The defense is that plaintiff was employed from week to week only, and also that he so neglected the duties of his employment as to justify his discharge, even if his contract was for the fixed period alleged by him.

To establish the terms of the contract, plaintiff produced in evidence a series of letters and telegrams which passed between himself, at various points in the eastern states, and defendant, in San Francisco. From these it appeared that their negotiation related at first to an employment of plaintiff as stage manager of said theater for two years, plaintiff’s first demand being $100 a week for the entire term. At length defendant offered him $75 a week for the first year, and $100 a week for the second. Plaintiff replied declining the proposal, and added: “I will sign a contract for ninety dollars a week for the first year, and, if at the end of that time business should not warrant the ten-dollar raise, I would wait until it did”; to which defendant rejoined: “Tour [235]terms, ninety dollars a week, accepted, .... which you can consider a contract until you get here, and then I will draw up proper one to suit.” No other, however, was drawn up at any time. Plaintiff came to San Francisco, and entered upon said employment, and received, it seems, compensation at $90 per week from August 6, 1894, until he was discharged, as stated. The court instructed the jury that said letters and telegrams constituted a contract upon the part of defendant to pay plaintiff for one year, but no longer.

On the issue whether plaintiff habitually neglected the requirements of his position of stage manager, and so warranted the defendant in discharging him (Civ. Code, see. 2000), it became necessary to prove what his duties were, and on this point the evidence was discordant. The testimony for plaintiff tended to show that the duties of his employment “were entirely behind the curtain.” There was other evidence, however, tending to show that, besides supervising the immediate production of plays and operas, it was the duty of the stage manager at said theater to keep informed of new attractions of that character, and of disengaged actors and actresses who might be available for the house, and negotiate for both new pieces and new people, subject to the control of the general management, and otherwise to assist the management “both on and off the stage.” There was also evidence that, when plaintiff arrived in San Francisco, he told defendant that he would “look out generally for the Tivoli, get new people and new plays, and devote all his time to the Tivoli,” and consult with her about its affairs. Among the instructions given by the court to the jury was the following: “I charge you that if you find, from the evidence, the plaintiff agreed with Mrs. Kreling, upon his arrival in San Francisco, to devote his whole time and attention to the Tivoli, and to the duties of his employment, and he then promised and agreed with the defendant to advise and consult with her during business hours with regard to the stage affairs or business “affairs of the Tivoli Opera House, and agreed to advise with her when requested to do so, in consideration of the receipt of ninety dollars per week, and if you are satisfied from the evidence that he habitually failed and neglected any part or portion of said duties, then plaintiff cannot recover in this action. ’ ’ The court also charged the jury, in substance, that defendant employed