Hartsell v. Masterson

McCLELLAN, C. J. — Plaintiff testified that defendants employed him for the year 1897 at a salary of four hundred and fifty dollars for the year. The defendant with whom the agreement was made testified that he employed plaintiff for an indefinite time at thirty-five dollars per month. On this state of the case, it was manifest error to allow plaintiff to prove that it was defendants’ custom to employ their clerks by the year and that they employed other clerks during the year 1897. The terms of express contracts cannot be proved in this way.—Wilson v. Smith, 111 Ala. 170; Kuhl v. Long, 102 Ala. 563; Carrett v. Trabue, Davis & Co,. 82 Ala. 227; Haas Bros. v. Hudmon Bros. & Co., 83 Ala. 174, 176. In view of the interposition of the plea of set-off by [281] defendants it Avas not error to receive evidence of the amount claimed by them in the snit against Masterson before a justice of the peace, and the account furnished Masterson in that suit Avas also properly received; but Masterson’s plea to that action should not have been admitted in evidence for him in this. This action Avas begun on August 11th, 1897. The first count claims for Avork and labor done betAveen January 1st and December 31st, 1897 . This is an apparent anachronism Avhich it Avould be Avell to remedy. The second count is not open to the objection taken by the demurrer to it. It is to be taken as upon an open account. The third count should be amended so as to shoAV more certainly that the claim is for that part of the services which plaintiff Avas prevented from performing by his Avrongfnl discharge. Of course, on the averments of this count interest Avould be recoverable only from December 31st, 1897. Charge 1 gnrnn for plaintiff is not open to the objection made in argument for appellants. There is no 'evidence that plaintiff received anything for his services from the time of his discharge to the expiration of the alleged term of his contract with defendants. According to plaintiffs averment and evidence the contract Avas not for “the entire year,” but from January 4th to December 31st. The charge asked by defendants might, therefore, liaA’-e misled or confused the jury. Moreover, according to the theory of the defense the contract was by the month, and plaintiff could not, it Avould. seeni, have been rightfully discharged without fault on his part “at any time during the year,” but only at the end of a month.—Moss v. D. L. I. & F. Co., 93 Ala. 269. Reversed and remanded.