Given v. Charron

Le Grand, C. J., delivered the opinion, of this court. This action was instituted to recover for an alleged wrongful dismissal of the plaintiff from the employment of the defendant. The declaration contains a special count, the indebitatus counts and an account stated. The special count sets out a special agreement between the plaintiff and the defendant, for the hire of the plaintiff for the period of six months, from January 1st, 1855, to July 1st, 1855, at the sum of eight hundred dollars, and that the plaintiff was discharged wrongfully, by tbe defendant, on the first day of April 1855. There was no witness examined in the case, who proved either the special agreement of employment counted upon, or the value of the plaintiff’s services. After proving the length of time which the plaintiff was in the employ of the defendant, and that he was a salesman of the first order; it was then proposed to offer, on behalf of the plaintiff, evidence of a custom among dry goods jobbers, such as was the defendant, in the city of Baltimore, that when a clerk or salesman begins a season in the absence of, or without a special contract, the clerk or salesman cannot be dismissed until the termination of the season, and that the seasons are two, the one from January the 1st to the 1st of July, and the other from July 1st to January 1st. The [508] admissibility of this evidence was objected to, but the court overruled, the objection and admitted the evidence to go to the jury. The defendant excepted. We think the testimony was properly admitted. It was pertinent to the contract declared upon, and a link in the chain of evidence to establish a custom existing among dry goods jobbers as to the time for which they were to be understood as employing clergy when nothing was said in regard t.o it. The question of the reasonableness of the custom was not involved in the offer, nor was its effect upon the lights of the plaintiff to recover determined by its admission. Those were questions reserved for the further, decision of tire court on the whole evidence, in the cause.. The evidence contained in the first bill of exceptions is in the second also. It. was proven that certain-persons, constituted a firm, under the name of Bartholow, Tiffany & Co., of which firm the plaintiff was one. The firm was dissolved; subsequently to the dissolution, the plaintiff became the clerk of the defendant. The dissolution took place on the bl tin of Spptember 1854. The only proof given of value of services was the rate at which they were paid for by Hamilton & Co., into whose employ the plaintiff entered after his discharge by the defendant, and an entry on the books of the defendant. Ham-, ilton & Co. paid the'plaintiff at the rate of $100per month. The entry on the book was in these words: “By interest and 4 months’ salary,, $800.” The defendant asked two instructions from tfie court to the jury, both- of which were denied, and the court instructed, the jury as follows: “If the jpry believe and find, from all the evidence in this cause, that the plaintiff was engaged to, be in the employ of the defendant for the entire, season of six months, and that the plaintiff performed his part of the-agreement, until discharged by the defendant, and after his, discharge offered to go on and complete his services for the six mouths, then the plaintiff is entitled to recover such damages or loss, as the jury shall find he has sustained by. [509] reason of the defendant’s discharging him before the expiration of the term of service agreed-on-.’'’ (Decided May 16th, 1860.) Apart from defect in form of the instruction in assuming the fact of the discharge of the plaintiff, it was erroneous. If the entry in the book be relied upon, it does.not correspond, in any view of it, with the agreement set up in. the declaration. There is no explanation in the evidence of the meaning of the words in the entry, “by interest,”' and if the $800 are to be taken as the rate of salary for four months, then, it is clear, the contract would be one for $1200 for six months, ipstead of eight hundred, the amount alleged in the special count. The rate of salary paid by Hamilton <fc Co., is not evidence on which the plaintiff can rely to sustain the -special count. It does not support the agreement set out in that count, for, if it proved anything, it would prove a hiring for. -six months at six hundred instead of eight hundred dollars. If the plaintiff had been employed by the defendant, and for a certain time, and before the expiration of the time-agreed upon, the contract was put an end to, it was competent to the plaintiff to recover, on a quantum meruit, for the services he actually rendered. Bull vs. Schuberth, 2 Md. Rep., 57. But, from the instruction given by the court, it is, impossible to decide whetherror not it was designed to be confined to the common counts, or to extend to the whole deT claration, and therefore calculated to mislead;the jury. It follows, that the instruction by the court was erroneous. The first prayer of the defendant ought to have been granted. The second prayer was abandoned at the bar, and is not therefore before this court. Judgment reversed and procedendo ordered.