Edwards v. Block

Blandford, Justice. 1. This was a motion for new trial, which the court refused, and this refusal is excepted to. As to the general grounds in the motion, the verdict was almost, if not, demanded by the evidence. The law approves it, the court below did approve it, and we approve his ruling in this respect. 2. The first ground insisted on by the able counsel for plaintiff in error is, that the court refused to charge the jury, “ that if they should be satisfied from .the .evidence that the original contract had, as claimed by defendant, a condition that the employment by defendant of plaintiff was to terminate at the death of defendant, or if his bakery was destroyed by fire; that after defendant’s bakery was destroyed by fire, defendant told plaintiff he wished him to stay, and to wait a day or two until he got straight, and he [454] would find plaintiff something to do or make agreeable arrangements with plaintiff; and if, in pursuance of said declaration, defendant did proceed to endeavor to get employment for plaintiff with G. W. Jack and others, and if plaintiff, relying on these acts and declarations of defendant, refused offers of employment with James Dunn & Co., of San Francisco, and with other parties outside of Atlanta, in good faith remained in Atlanta several weeks, waitingon defendant to carry out his declarations, and at the expiration of five weeks after the fire, defendant refused to carry out his declarations or to pay plaintiff anything, this in law was a waiver of the condition in the contract that the same should terminate at defendant’s death or in case his bakery was destroyed by fire,” etc. The court did right to refuse this request. To have given it would have been manifest error. Under the contract, as proved by defendant and his witnesses, the defendant employed plaintiff for one year, which was to terminate by the death of defendant or the destruction of his bakery by fire. The bakery was destroyed by fire. After this the declarations or statements embraced in the request were made by defendant to plaintiff. It is quite clear that such statements were merely gratuitous on the part of defendant, and in no sense related to the contract between the parties, which had been terminated by the fire; nor were the same in any manner a new contract between the parties. If they had amounted to a new contract, the charge was properly refused, because the contract declared on by plaintiff was an entire contract for employment of plaintiff by the defendant for the year, and there were no conditions in it as to death or fire, as pleaded and proved by defendant. So the plaintiff must recover, if at all, upon the contract and breaches thereof, as set out in his declaration, or on his quantum meruit count attached thereto. But we do not think that the facts hypothesized in this request were any waiver of the contract, as contendedfor by the defendant; nor do such gratuitous declarations of de [455] fendant amount to a new contract. They were only friendly offers by the defendant of assistance and help to plaintiff— merely voluntary and without consideration, and do not form the ground of a contract. 3. The next, and only other ground relied on by the plain tiff in error is, that the court erred in charging the jury that, if they found the contract to be as contended for by plaintiff in error, they should reduce the damages by whatever sum plaintiff may have received for work done for other parties during the period sued for, because the pleadings and evidence do not warrant this charge. This charge in nowise hurt the plaintiff, because the jury found for defendant on his second plea, which plea set forth the contract between the parties to be that the same should terminate by the death of defendant or the destruction of his bakery by fire, and that the same was destroyed by fire in January, 1882, and it was admitted that plaintiff had been paid under the contract until the fire. So, in this aspect of the case, whether the charge be correct or not, it could not affect the plaintiff’s rights. Judgment affirmed. Hall, Justice, concurred, but furnished no written opinion.