Fitzpatrick Square Bale Ginning Co. v. McLaney

ANDERSON, J. — An employe wrongfully discharged does not lose his right of action against his employe;* by [592] reason of having sought and obtained employment, or for failing to obtain employment when he could have done so. The defendant may reduce the amount of recovery by showing such other employment, or that plain" tiff might have obtained other employment by the exercise of reasonable diligence; but these facts could not be used to defeat 'entirely plaintiff’s cause of action. — Wilkinson v. Black, 80 Ala. 329; Morris Co. v. Knox, 96 Ala. 320, 11 South. 207; Troy Co. v. Logan, 96 Ala. 619, 12 South. 712. The defendant’s plea of set-off, No. 3, set up a good cause of action, towit, the contract and breach by the plaintiff, and the defendant’s readiness and willingness to comply with same, and it was not necessary for it to aver that the defendant failed to obtain other employment of a similar character after making a reasonable effort to do so. Said failure could be used only in reduction of damages, and was the subject of replication by the plaintiff, rather than an essential averment to establish the breach relied upon in the plea of set-off. — Lang v. Waters’ Adm’r, 47 Ala. 624. The trial court did not err in overruling the demurrer to this plea. The trial court did not err- in permitting the defendant to prove that Porter Jones was buying seed and acting as the representative of the Southern Oil Company at the same time the defendant was working for plaintiff, and that immediately after defendant was discharged the plaintiff employed said Jones and permitted him to continue to represent the Southern Oil Company, as well as plaintiff. There was a conflict between the defendant’s evidence and that of Sheftall, the general manager for the plaintiff, both as to the nature of the contract and a failure of defendant to comply therewith. The fact that immediately upon defendant’s discharge the plaintiff employed the representative of a competi [593] five seed buyer and permitted him to serve both masters creates an inference that the two concerns were acting-in concert and could accomplish with one man what had previously required the service of two, and was a fact to be considered by the jury in ascertaining the true contract, and whether or not there was a breach. If the plaintiff had reasons for getting rid of the defendant, regardless of a breach of the contract, this would be a fact tending to corroborate the defendant, and going- to the discredit of Sheftall, the manager and witness for the plaintiff. The trial court did not err in refusing to permit the defendant to answer plaintiff’s question, “Have you used or appropriated to your OAvn use this sum of money, which you state you refused to turn over to the plaintiff?” Whether or not the action of the court Avas justified in this ruling, because an ansAver to the question would incriminate the witness, we need not decide, as the ruling can he justified upon another ground. The answer Avould have been utterly immaterial. The defendant had just admitted that he Avithheld the amount and that there had been a demand and refusal. This fact had been testified to both by the defendant and ¡Sheftall, and over it there Avas not the slightest conflict. Tf he rightfully withheld the money, it made no difference Avhether he had used it or not; or, if he did not rightfully Avithhold it, he Avas liable to the plaintiff for it, whether he had appropriated it to his OAvn use or not. If the amount Avithheld could not be applied to defendant’s plea of set-off, the plaintiff was entitled to recover, whether the defendant merely Avithheld it or used it. His liability was the same in either event. There was no error in the first part of the oral charge excepted to by the plaintiff. We do not think it invaded the province of the jury, as claimed in brief of counsel, [594] upon the idea that it excluded from their consideration, the letter from Sheftall to the defendant. The charge in substance instructs the jury that, if the contract was completed before the létter was written, the things contained in said letter did not change the contract, and that the reception of the letter by the defendant, and its retention by him without a repudiation of same,, did not render it a part of the contract, and that it was not incumbent upon the defendant to take notice of it. If the contract was completed before the letter was written, a subsequent written statement by one of the parties could not change its terms, and the defendant had the right to stand on the contract that he really made, and was not called upon to combat Sheftall as' to what he claimed was his understanding of the contract, or in his attempt to set up another one. While it was not incumbent upon the defendant to repudiate the letter, we do not mean to hold that his silent retention of same was not a circumstance for argument of counsel and for the consideration of the jury in weighing the evidence as to when the contract was made and in determining what was its contents, which were disputed questions; but we do not understand the charge as eliminating from the jury a consideration of the letter for any purpose. So much of the oral charge as is the basis of assignments 10 and 11 was free from error. If the plaintiff, after knowing of the dereliction of duty by the defendant, condoned the same by keeping him in its employ, and it had a reasonable time and opportunity to discharge him after a discovery of said dereliction, and failed to do so, it could not subsequently discharge him because of such acts or omissions. It is insisted by counsel that this part, of the charge was abstract, because there was no proof that the plaintiff knew of the derelictions of the defendant previous to the discharge. [595] There was evidence that some of said derelictions were known to Sheftall at least 14 days before the discharge] that is, that might create an inference of knowledge. One of the breaches complained of was defendant’s failure to personally make out and sign the daily reports, yet Sheftall admitted having received 31 of these reports, and that, while they were all signed in the name of the defendant, his name was signed to 14 of them by some other person. Moreover, ivhile the trial court will not be reversed for refusing abstract charges (Tenn. Co. v. Danforth, 112 Ala. 80, 20 South. 502), it will not be reversed for giving them, unless it appears that the jury were thereby misled to the prejudice of the appellant.— 2 Mayfield’s Dig. p. 565, and cases cited under section 67. The judgment of the circuit court is affirmed. Tyson, C. d., and Simpson and Denson, JJ., concur.