Barlow v. Taylor Mining Co.

Opinion by Mr. Chief Justice Bean. 1. The court charged the jury, in effect, that under the contract as testified to by the parties the plaintiff remained in the employ of the company until he was actually discharged, and if they were not satisfied by a preponderance of the testimony that he had actually been discharged prior to December, eighteen hundred and ninety-three, he was entitled to recover in this action compensation for the time he was not at work for the company, if he held himself in readiness for the service required of him by such contract. In our opinion, this instruction was erroneous. The original contract of hiring was not for a definite period of time, with the right reserved to defendant to discharge the plaintiff at any time, as the instruction of the court would seem to contemplate, but it was a general, indefinite hiring, subject to be terminated by either party at pleasure: Wood’s Master and Servant, 283. And by the tacit agreement of the parties, evidenced by their acts, it continued so long as plaintiff worked for the defendant; but, when he ceased to work, we think the contract of hiring terminated, unless there was some agreement of the parties to the contrary. The plaintiff was employed to perform certain services for defendant, at a stipulated compensation, and so long as he continued to render the services, he was entitled to the stipulated wages; but, when [138] he ceased to work, his right to compensation ceased also, unless there was an agreement that his employment should continue. The burden of proof was, therefore, not upon the defendant to show that plaintiff had been actually discharged when he ceased to work for it, but it was on him to show that, under the contract, his employment and wages were to continue during the time he was rendering no services to his employer. 2. To support his contention that he was in the employ of the company and entitled to wages during the time he was in Portland, from April tenth to May seventeenth, eighteen hundred and ninety-three, plaintiff was permitted, over the objection of defendant, to testify that before going to Portland he asked one Dodd, the bookkeeper of defendant, if it would be necessary for him to seek another job while in Portland, and that Dodd said it was not, as the company might need his services at any moment, and, if ■ so, he would telegraph him. The evidence shows that the general manager of the defendant, who hired and discharged the men, and who employed the plaintiff, was one Taylor, and there was no evidence whatever to show, or tending to show, that Dodd had any authority to bind the company by any contract of hiring, or by any declarations of the character given in evidence, and hence the admission of this testimony was error. 3. The plaintiff testified that in June, eighteen hundred and ninety-three, he received a telegram [139] announcing the illness of his family, and showed it to the general manager of the defendant, who gave him permission to go to Portland; that he inquired about his wages, and that the general manager said: “Go ahead. Your wages will go on just the same. I may telegraph for you at any day, as I may get the money and orders to unload the machinery. If you cannot come, send a competent man in your place.” Defendant requested the court to instruct the jury that if these facts were established by the evidence they would only tend to show a continuance of the contract for the current month, and if plaintiff did not return to work at the end of the month, and was not requested by defendant to return, the contract between him and defendant terminated, and plaintiff could not recover wages for the time he was unemployed • after the close of the month. "We think this instruction was properly refused. Under the agreement, as testified to by the plaintiff, the length of time he was to remain in Portland under wages depended entirely on the understanding and intent of the parties, which could be ascertained only from a consideration of all the circumstances of the case. It was an inference of fact for the jury, and not of law for the court. The judgment must be reversed and new trial ordered. Reversed.