McGehee, Driver & Co. v. Roberts

STONE, O. J. All the testimony agrees that Roberts ceased to serve appellants on July 13, 1889. He testifies, and Mc-Gehee confirms him in his statement, that the conversation, or altercation between him and McGeliee, took place about one month before July 13. Roberts continued to serve the firm for a month after that altercation. This was a waiver by Roberts of all that occurred in that interview, as an excuse or pretext for quitting the service. — 1 Brick. Dig. 396,-§276. What took place with Davis on July 13, was neither a discharge of Roberts, nor an excuse for his quitting. If unpleasant words were used, it would seem that Roberts was, at least, not without fault in provoking them. And if McGehee, in the conversation a month before, said to Roberts, “ If you are not satisfied, you had better quit now,” this was no excuse for his quitting, for several reasons: First, it was not acted on by Roberts, but he continued in the service for a month after-wards. Second, when he announced on July 13 his willingness to treat McGehee’s remark as a proposition, and then to accept it, he was informed both by Davis and Driver, the other partners, that if he quit them, he would not be paid any thing. It follows, that if McGehee’s remark was a proposition for a consentive rescission of the contract for the balance of the year, that proposition was in effect withdrawn by the separate announcements of Davis and Driver, made before Roberts accepted and acted on it, that if he quit he would be paid nothing for his services. Third, if McGehee’s remark was in any sense a proposition, it was a proposition for a consentive termination of the contract, or rescission of it for the residue of the year. If such proposition was made and accepted, it was, at most, a modification of the original contract, and would authorize a recovery by Roberts for the time he had served, [537] not for Ms unauthorized discharge, but according to the provisions of the modified contract, which absolved him from all duty of further service. The complaint in the present suit •contains a single count, and its gravamen is an unauthorized ■discharge of plaintiff from the service of defendants. This would present a fatal variance between the allegations and proof, and prevent a recovery on this phase of the case. Giving to the testimony in favor of the plaintiff its largest and most favorable interpretation, it fails to make a case which would authorize him to have it passed on by the jury.—Davis v. Ayres, 9 Ala. 292; Ramey v. Holcombe, 21 Ala. 567; Fowler v. Armour, 24 Ala. 194; Strauss v. Meertief, 64 Ala. 299; Holloway v. Talbot, 70 Ala. 389; Wilkinson v. Black, 80 Ala. 329; Liddell v. Chidester, 84 Ala. 508. The general charge — the first asked by defendants — ought to have been given. Reversed and remanded.