Dotson v. F. S. Royster Guano Co.

Stacy, C. J. A careful perusal of the record leaves us with the impression that no error was committed on the trial of the first three issues establishing the alleged contract and its breach. Jones v. Light Co., 206 N. C., 862, 175 S. E., 167; Stevens v. R. R., 187 N. C., 528, 122 S. E., 295; Fisher v. Lumber Co., 183 N. C., 485, 111 S. E., 857. But a contrary impression prevails with respect to the fourth and fifth issues. In apt time, the defendant asked the court to instruct the., jury as follows: “The court instructs the jury that the alleged contract for ‘employment of the kind and character the plaintiff was then performing’ means the same kind and character of employment which the plaintiff was performing in August, 1915, at the time the alleged contract was made. The plaintiff’s own evidence is that he was employed as a timekeeper at that time. In arriving at the amount of damages to which the plaintiff is entitled, if you find he is entitled to damages, you can consider only the regular compensation for a timekeeper at the- Charlotte factory of the defendant in the years 1932 and 1933. The uncontradicted evidence is that such pay for each year was $20.00 per week. Therefore, the maximum amount of damages for such year is $1,040, from which must be deducted the amount the plaintiff earned in each year, or could have earned by due diligence.” The refusal to give the instruction thus requested forms the basis of one of defendant’s exceptive assignments of error. Under the contract *637 alleged by tbe plaintiff, and as established by tbe jury’s answer to tbe first issue, and tbe admitted evidence in tbe ease, it would seem that tbe defendant’s prayer to tbe above effect should have been granted. Tbe fact that plaintiff was advanced in bis work from time to time, with increased compensation, even if regarded in fulfillment of defendant’s promise to give him employment, would not change tbe terms of tbe original agreement. Tbe contract was to give tbe plaintiff employment of tbe kind and character be was performing in August, 1915, and not of tbe kind and character be was then performing, with reasonable advancement from time to time. Nór can generosity of fulfillment for awhile be construed as an enlargement of tbe contract. Tbe practical interpretation of tbe parties is not applicable to tbe case. Dole v. Fibre Co., 200 N. C., 484, 157 S. E., 857. Tbe plaintiff has limited bis recovery by tbe plain terms of tbe agreement upon which be sues. Partial new trial.