MacKenzie v. King

OPINION OF THE COURT BY PERRY, C. J. This is an action at law in which the plaintiff claims of the defendant the sum of $2800 as damages for the breach of a contract of employment. The allegations of the declaration are, in substance, that the defendant agreed to employ the plaintiff and the plaintiff undertook to serve the defendant as a member of an operatic troupe for the period of sixteen weeks beginning December 19, 1926, at hn agreed salary of $350 per week; that the defendant, without cause, discharged the plaintiff before the expiration of the time agreed upon and is still owing *231 liim tlie salary for the period of eight weeks. The case was tried before a jury and a verdict rendered for the plaintiff in the fnll amount claimed. With the consent of both parties, the presiding judge instructed the jury that the evidence of the plaintiff and that of the defendant “is in agreement, that they entered into a contract of employment under the terms of which Mr. Mackenzie” (the plaintiff) “was to receive and Mr. King” (the defendant) “was to pay three hundred and fifty dollars a week for sixteen Aveeks.” In other Avords, the evidence Avas undisputed that there Avas a contract of employment between the parties, that the defendant was to pay and the plaintiff was to receive as his salary $350 per Aveek and that the agreed period of employment AAras sixteen Aveeks. The evidence was also undisputed, and no contention is noAV made to the contrary, that the period of the employment Avas to begin and did begin on December 19, 1926. The presiding judge instructed the jury that the expression “sixteen (16) weeks” as used in the contract meant “sixteen consecutive weeks.” It is contended on behalf of the defendant upon the present bill of exceptions that the question of AAdiether the sixteen weeks agreed upon by the parties were sixteen consecutive weeks or sixteen non-consecutive Aveeks Avas one of fact to be determined by the jury and that it was not purely one of law to be passed upon by the court. The contract in this case is to be found in cablegrams and letters Avhich passed between the parties. Replying to the plaintiff’s questions, “how many weeks you guarantee me” and “Iioav many Aveeks can you guarantee me, mnst knoAV,” the defendant said, “guarantee sixteen weeks” and in turn asked, “ivkat guarantee from you?” To this the plaintiff replied, “guarantee stay Avith you sixteen weeks.” The contract is wholly in these writings. It is not claimed *232 that any part of it is oral. The evidence is altogether undisputed as to what the writings were. The language in which the contract was expressed is undisputed. The contract was that the one would employ and the other would serve for “sixteen weeks.” This language is entirely unambiguous. It admits of but one construction and that is that the contract was for a period of sixteen consecutive weeks. That is the construction consonant with good English and with the ordinary, everyday acceptation of the words used. When one takes a vacation for ten weeks, he takes it for ten consecutive weeks. If a ship is chartered for two years, it is chartered for two consecutive years. If a laborer or a clerk undertakes to serve another for sixty days or for six months or for six years, the undertaking is to serve for the specified length of time consecutively. No one would understand that the vacation was for a total of ten weeks with intervals of work interrupting it now and then, or that the undertaking wás to serve for that total length of time, made up of smaller detached periods to be later chosen by the one' party or by the other. Such a view would not be in accordance with common experience and common sense. When' a contract is expressed wholly in writing and the language of the writing is shown by undisputed evidence and there is no latent ambiguity, any question of construction arising upon the face of the instrument is for the court and not for the jury to decide. There being no ambiguity in the language of the contract, there is no occasion for a jury to consider any evidence of practical construction by the parties or other evidence outside of the contract itself. It is only when a contract is ambiguous that resort may be had, under some circumstances, to these aids to construction. It is not claimed by either of the contending parties to this case that the employer in his cablegrams or letters *233 referred, to one definite, certain, consecutive period of sixteen weeks and that the employee in his messages referred to another definite, certain, consecutive period of sixteen weeks. No support for any such theory is to- be found in the writings. In his cablegram of November 13, 1926, King said to Mackenzie that the engagement would “open Majestic nineteenth,” meaning the nineteenth of December. In the subsequent cablegrams which passed between the parties there was bargaining on other points but no further reference was made to the date of opening. Under these circumstances the defendant must be deemed to have acquiesced in the proposal that the engagement should open on December nineteen. Neither party now disputes that the time for which the plaintiff was to be paid under the contract began to run December 19, 1926. The only question of construction submitted to us under the exceptions is as to the duration of the period of the employment. M. E. Winn (Thompson, Cathcart d? Beebe with him on the brief) for plaintiff. J. A. Matthewman (also on the briefs) for defendant. The question whether the plaintiff waived the nonperformance by the defendant of the contract was left to the jury under proper instructions. The jury must have found that there was no such waiver. The doctrine of forfeiture invoked by the defendant in his briefs is not involved under the evidence adduced. The exceptions are overruled.