Viall v. Lionel Manufacturing Co.

Shumway, J. The decision of this court, when this case was before it on the plaintiff’s appeal, disposes of all the questions of law involved in the second trial, except the ruling on evidence; but even the single ruling which the defendant claims was erroneous did not affect it harmfully. The evidence on which the ruling was given was the testimony of Judge Scott, as to the evidence before him on the trial of the first case. As Judge Scott was unable to appear on this trial, it was stipulated that his notes of the evidence should be received in place of his oral testimony. These notes were read to the court. The court ruled them out for. the purpose for which they were first offered. Counsel j stated that the fundamental claim was to show that' the first action was a bar to this. The court excluded the notes for that purpose, but ruled them in for the purpose of showing when the breach of the contract by the defendant occurred.. *344 There was no error in ruling out the evidence for the purpose for which it was first offered. It is apparent that the first action was to recover the $27 a week, which the plaintiff was to receive under the modification of the first contract, and the amount of the first judgment was for salary due by reason of the fact that the plaintiff was ready and willing to perform the work,!and not due for any actual labor performed. All of the facts that were in issue in the first case were adjudicated by the judgment in that case, including the fact that the parties entered into the contract; and so far as it was a question of fact, that the first action was for salary due to December 8th, 1913, and not for damages for breach of contract. For the purposes of the case it is wholly immaterial whether the plaintiff even worked in the defendant’s factory or not, so long as he was ready and willing to work and was prevented from doing so by the defendant’s act. There was no error in sustaining the demurrer to the second defense which raised the very question this court had decided adversely to the defendant’s contention; no more was it error for the court to deny the defendant’s motion to file the same defense after the plaintiff had amended his complaint. That amendment did not change the plaintiff’s complaint any further than that it may have removed any ground to claim that he was seeking to recover a salary rather than damages for breach of contract. In all of the defendant’s fifteen reasons of appeal none of them afford the defendant any good cause to complain of the judgment, unless the first case was in fact a bar to an action to recover damages for a breach of the contract. There is no error. In this opinion the other judges concurred.