Burkham Bros. v. Daniel

STONE, J. Whether the reason assigned by appellants, for dismissing appellee from their service, was the true one, was, in the absence of rulings of the court thereon, a pure question of fact for the jury. No question of law was raised [610] upon it, so far as we are informed. One party contended, as we infer from the recitals in the bill of exceptions, that such was the case; while the other contended, that this was a mere pretext on the part of the employers, while the true reason was a failure of business, and consequently a desire to rid themselves of the burden of appellee’s wages. "With this question, as now presented, we have nothing to do. "We can not affirm that there was no testimony in support of either of these views; and a charge of the court, referring this question to the jury, could not, as the facts appear in this record, have been treated as abstract. We can not apply the doctrine of error without injury to the charges 'given by the court. — 1 Brick. Dig. 344, § 135; Upson v. Raiford, 29 Ala. 188; Dill v. Camp, 22 Ala. 249. 2. The service which the plaintiff contracted to perform, required skill, care, and diligence. • Experience, and watchful attention, were among the stipulations implied in the engagement. It is said by a leading author, “ Whenever there is a contract to perform any work, or to transact any business, the law implies an engagement, on the part of the person undertaking to do the work, that it shall be performed with due care, diligence, and skill, according to the order given and assented to.” — 2 Chitty on Contracts, 11th Amer. Ed. 796, 808. It is not enough that plaintiff had made, or had agreed to make, compensation for all injuries resulting from his mistakes. This he might have done, and yet the business of appellants as warehousemen would have been seriously injured, if not ruined, by the frequent recurrence of such errors.The Circuit Court erred in the charge given and excepted to. — Davis v. Wade, 4 Ala. 208; Goodman v. Walker, 30 Ala. 482. 3. The court did not err in refusing the charge asked. The facts supposed could not amount to a release, or an accord and satisfaction. — Trustees v. Walden, 15 Ala. 655. Reversed and remanded.