Koplitz v. Powell

Cassoday, J. Beyond question the contract thus admitted was entire. Being entire, the plaintiff could only recover upon showing full performance on his part, or some valid excuse for nonperformance. Jennings v. Lyons, 39 Wis., 553; Diefenback v. Stark, ante, p. 462. The failure of such performance is conceded, and the absence of such excuse is found by the court. From a careful reading of the testimony we are convinced that there is evidence to sustain the finding. At least, there is no such clear preponderance of evidence in [673] favor of the plaintiff as would authorize this court to disturb the judgment. Kibbee v. Howard, 7 Wis., 150; Evans v. Bennett, 7 Wis., 404; Hutchinson v. Eaton, 9 Wis., 226; Davis v. Judd, 11 Wis., 11; Stewart v. Stewart, 50 Wis., 445. A rehearsal of the evidence would only incumber the reports, without being of any benefit to any one, and we therefore refrain from doing so. We think counsel were right in arguing that a servant is not required to work during unseasonable hours, unless the contract or nature of the employment make it reasonable that he should do so. If he voluntarily does so, however, it is no ground for extra compensation, and much less for claiming a breach of contract by the other party. This is but the converse of the proposition held in Bast v. Byrne, 51 Wis., 531, and necessarily follows from the reasoning upon which that decision owas based. But the mere request to perform such unseasonable service would not of itself justify the servant in quitting the employment. Nor would the refusal to perform such unseasonable service justify his discharge by the defendants. If the son had in fact been unlawfully discharged, as claimed, then undoubtedly the plaintiff might have recovered for any damages sustained. Everson v. Powers, 89 N. Y., 527. But the difficulty with the plaintiff’s case is that the court has found against him on the facts, and we are not authorized, for the reasons given, to disturb that finding. This disposes of the case, and renders it unnecessary to consider the other questions discussed in the briefs. By the Court.— The judgment of the county court is affirmed.