Beck v. West & Co.

STONE, C. J. This is the second appeal in this case. Beck v. West, 87 Ala. 213. On the return of the case to the Circuit Court, the plaintiff obtained leave to amend his complaint, and filed an amendment, which is set out only in the bill of exceptions. To that amended complaint, however, the bill of exceptions states a demurrer was sustained. The demurrer, and the court’s ruling upon it, are not otherwise shown. Under all our decisions, we are forbidden to consider this ruling.—3 Brick. Dig. 405, § 18; Powell v. State, 89 Ala. 172; 1 Brick. Dig. 78, § 7. The case must, therefore, be decided on the pleadings as they appeared on the former appeal. Testimony was introduced showing that, by the terms of the contract, Beck, the plaintiff, was to serve West & Co., defendants, as drummer, or travelling salesman, from some date in October, 1887, until January 3, 1888, and that his compensation was to be one half the profits realized on the sales he might make; he. Beck, to pay his own expenses. It was also proved that, in November, West & Co. discharged Beck from service; and there was no testimony that Beck, though not very successful, was derelict in his efforts to serve his principals. The reason alleged for the discharge was, want of proper success in effecting sales. On the second trial, plaintiff offered to prove the time he had lost, and the travelling expenses he had incuri’ed in attempting to make sales. This testimony was ruled out, on objection of defendants, and plaintiff excepted. We suppose this testimony was offered on the theory, that the defendants having broken their contract, without fault on the part of the plaintiff, the latter was thereby released from further contractual obligation, and was remitted to his common-law right to sue for work and labor done, and for money paid and expended, at the instance and request of defendants. We are not prepared to deny that, if one be employed to do services and -work for another, which involve the expenditure of time and money, and actually performs a part of the [315] service, and is then discharged without cause, he may maintain an action on the implied promise of the hirer to pay him for the work done and money expended in the service. Such is the general rule. This rule, hoAvever, would not include the money expended in purchasing the horse and buggy. They were procured, not in part performance of the contract, but as a means or facility for enabling the employé to comply Avith his engagement, Avith greater comfort t.o himself. It Avas neither an express nor implied stipulation of the 'agreement. To invoke the principle last stated, the complaint must be adapted to the relief claimed. Common counts for work and labor done, and money paid and expended at the request of defendants, would probably meet legal requirements in this case, as effectually as a special count setting out -the necessary facts. We need not declare this absolutely. The complaint in the present suit is a single, special count, and it is in no sense adapted to the kind of relief last considered. The breaches assigned are, that defendants failed to advance money as a loan to plaintiff, to enable him to defray travelling expenses; failed to pay him commissions on sales made by him, and AATongfully discharged plaintiff from the service without furnishing him expense-money. The damages claimed are for injury to plaintiff’s credit, money expended in the purchase of a horse and buggy, and loss of commissions he Avould have earned and made, if permitted to continue in the service. He recovered his commissions on all the sales made, and nothing else. We feel constrained to hold that plaintiff recovered all he Avas entitled to recover under his complaint. Proof offered by him of the cost of the horse and buggy, and of repairs on the latter, was rightly ruled out, on any form of complaint the facts authorized to be framed. And testimony of the value of his time and services, and of the amount of his tiavelling ex-2>enses, Avas not Avithin any issue he had tendered, and was rightly excluded. The Circuit Court did not err in the matter of rejecting testimony offered. Under the rules declared above, the Circuit Court did not err in the two charges given. Nor was there error in the several refusals to charges as asked; for each of them is either faulty in one or more particulars, or seeks to raise a question outside of the scope of the pleadings. Affirmed.