Cumberland & Pennsylvania Rail Road v. Slack

Bartol, O. J., delivered the opinion of the Court. This is an action of assumpsit brought hy the appellant against the appellee. The declaration contains a count “for money had and received” and a count “on an account stated; ’ ’ filed with the declaration was a bill of particulars, showing the nature of the plaintiff’s demands. The defendant pleaded 1st, never indebted; 2nd, “payment;” 3rd and 4th, “ Set-off,” with a bill of particulars showing the set-off claimed. Then follows a protracted course of pleading on both sides ; which, as some questions have been raised thereon, will be more particularly noted hereafter; first adverting to “the facts out of which the controversy has arisen, and the substantial questions presented hy the appeal. It appears that the appellant employed the appellee as “the G-eneral Superintendent” of its railroads, in 1854. His employment was by the year, commencing for each year, on the 1st day of January and'ending on the 31st day of December. He was so employed for the year 1874 at the annual salary of $5000, payable monthly, and continued so employed till the evening of the 9th of April, 1874; when, as he alleges, he was wrongfully discharged, — 173 — and hence he claims a set-off. This the appellant denies, insisting first that he resigned voluntarily, and secondly if discharged, that there was sufficient cause to justify the company in dismissing him. At the time he left the service of the company he had in hand $700, received by him for the company, which he retained, and there was a deficiency or balance of $953.61 due the company from one of the agents named BerJeebill, for which the appellant seeks to hold him responsible. These two sums making an aggregate of $1653.61 constitute the amount for which the suit was brought, as stated in the appellant’s bill of particulars. The salary of the appellee was paid for the months of January, February and March 1874 — viz., $1250, which added to the sum of $700, retained by him, makes $1950, and this deducted from $5000, the salary for the year to which he claims to be entitled, leaves a balance of $3050, and this constitutes his claim by way of set-off. There being' no question or dispute, with regard to his employment for the year 1874 at the salary before stated ; the questions presented for our consideration are 1st. Was he discharged, or did he resign voluntarily? 2nd. If discharged, was the discharge illegal and without sufficient cause ? The first question is raised by the fourth replication to th & fourth plea, wherein it is alleged that “the defendant on the 10th day of April 1874, resigned his position as General Superintendent, and refused further to perform the duties thereof.” The evidence on this subject is the following letter addressed to the appellee by the President of the company : “New York, April 8th, 1874. “0. Slack, Esq. Supt. Mount Savage: “Dr. Sir, I am satisfied that the interests of this company require a reorganization of its local management, — 174 — by the concentration of its affairs in Allegany Co. under one head. Accordingly, I -write hy to-day’s mail to the 2d. Y. Prest, to assume charge of the rail-road. Recent circumstances have confirmed the opinion above expressed. I presume you "will prefer to retire hy means of a resignation. It is hereby understood that the same is accepted, and you will please telegraph me of its transmission, as I have instructed the 2nd Y. Prest, to take entire charge of the rail-road immediately on receipt of my letter. Please confer with Mr. Millholland in turning over the papers in the Supt. office. “Yours Respty, “Allen Campbell, Prest.” ■ This letter was received hy the appellee on the 9th of April 1874, he went immediately to the office of Mr. Millholland, the 2nd Y. Prest, and showed him the letter. He told the appellee that he had just received a copy of it from Mr. Campbell, inclosed in a letter written to him by Mr. Campbell, instructing him to assume and take charge of the railroads, and the office of the appellee, and the hooks and papers belonging to the office. The appellee further states in his testimony, “ I at once, acted in accordance with the terms of Mr. Campbell's letter, hy surrendering at once to Mr. Millholland the entire charge and control of everything. I at once left the service of the company, which was in the evening of the 9th of April 1874, and I never performed any duties, or gave any orders after that time. Mr. Millholland took immediate charge of everything, I had nothing to do with the affairs of the road, after that time.” On the next day the appellee addressed the following note to Mr. Campbell, Prest.: — 175 — “Mount Savage, Md., April 10, 1874. “Allen Campbell, Esq. “Dear Sir. — I hereby resign the position of Gen’l Supt. of the Cumberland and Penna. Rail-road Co. and branch roads, to take effect at once. Tours truly, C. Slack.” The appellee states in his testimony, that he “ wrote this-note-because he was ordered to' do it in Mr. Campbell’s letter, dated 8th of April 1874.” In our opinion that letter operated as a positive and peremptory dismissal of the appellee from the service of the companyhis note written the next day cannot change its character or construction, it does not show that he voluntarily resigned, nor can it be construed as acquiescing in his dismissal. He had surrendered the office the day before, in obedience to what he properly understood to be Mr. Campbell’s orders, and Mr. Millholland had already •assumed full charge of. the same. So that when his note of April 10th was written, he had in fact no office to resign. Construing these papers in the light of all the circumstances, it seems impossible to escape the conclusion thatthe appellee correctly understood Mr. Campbell’s letter as a positive and final discharge, leaving him no option or choice in the matter; and therefore the ninth and tenth prayers of the appellant were properly refused. . 2nd. Had the appellant legal cause for discharging the appellee ? • 'In the sixth replication to the fourth plea two causes are alleged in justification of the discharge. 1st. That the appellee after his employment became and was accustomed to be intoxicated, and thereby became unfit for the performance of the duties required of him as Superintendent, &c. There is no evidence in the cause to support this averment ; it appears by the first bill of exceptions, that after — 176 — the appellant’s witnesses had all been examined, and its attorney had announced to the Court that it closed its case, and after the testimony of the appellee had been given, and the case on his part had also been closed, that the appellant then called Mr. Millholland, a witness who had already been on the stand and had been examined for the appellant in chief, and proposed to prove by him the alleged intoxication of the appellee. Objection being made to the offer of the testimony at that stage of the case, it was excluded, and we think very properly. The onus was upon the plaintiff, and the rule is well settled that “being entitled to begin and reply, and having begun it is not permitted to go into half of its case and reserve the remainder, but is obliged to develop the whole.” 1 Greenleaf Ev., sec. 74, and cases cit§d in note 3. The effect of a different rule would be needlessly to protract trials at nisi prius, or make them interminable. But the question of admitting the testimony when offered, was' in the discretion of the Circuit Court, not reviewable on appeal. Williams vs. Brailsford, 25 Md., 127 ; Bannon vs. Warfield, 42 Md., 39. 2nd. As further cause for the discharge of the appellee, it is alleged in the sixth replication to the fourth plea, that the defendant failed to discharge his duty in not collecting the balance or deficiency due the company .from the agent Berkebill, and in failing to report such deficiency to the company. The evidence given by the appellee is that it was not his duty to report this deficiency to the company, that he had made every effort to collect it, hut that he could not collect it and had no authority to bring suit for it. This testimony is uncontradicted; Mr. Millholland testifies that “it had been Mr. Slack’s custom since 1869, to collect all the moneys of the company -from the different agents along the line of the railroad, and pay them over to the177 company, but the witness knew of no instructions given to the defendant to that effect, or upon that subject: and that Berkebill's duty was to collect the money due for freights received and delivered at the Erostburg office, and to pay them over to Mr. Slack for the plaintiff.” Upon this testimony, it was not error for the Circuit Court to instruct the jury that “there is no evidence in this cause, under the ’pleadings, that the dismissal of the defendant, if the jury find he was dismissed by the plaintiff from its service, was done for sufficient cause.” And for the same reason the second, third, fourth, fifth, eighth, eleventh and twelfth prayers of the appellant were properly refused. The first prayer of the appellant was granted with a modification of which the appellant complains. It relates to the alleged liability of the appellant for $953.61, the deficiency in the cash account. As originally offered the prayer asked an instruction to the jury that from the facts enumerated therein, if found bythem, “ they may find that defendant received said sum of $953.61, and was liable to the plaintiff for the same in this action.” The Court modified the prayer by striking out the latter part, and substituting in lieu thereof an instruction that the facts enumerated in the prayer, if foimd hy the jury, was “evidence for their consideration, upon the question whéther the defendant did in fact receive said money, and if they do so find, the defendant is responsible to the plaintiff for the same.” We discover no error in this, the several matters stated in the prayer were not conclusive, but furnished' some ground for the inference which the appellant sought to deduce, it was correct therefore to instruct the jury, that they furnished evidence proper for their consideration, upon the question whether the money had in fact been received by the defendant. • The instruction is not materially dii — 178 — ferent from that asked in the prayer, and the appellant was not injured by the modification. The appellee is not liable, in this action, for the money unless he had received it, and there was therefore no error in granting the third and fourth prayers of the defendant. ■ The seventh prayer of the appellant asks an instruction “ that there is no sufficient evidence in the cause to prove that the defendant was ready and willing to perform his duty as General Superintendent, as stated in the pleadings.” The appellee says in his testimony, “ I was ready and willing to perform my duties, and the services of my office, and I held myself at the time of iny discharge, and at all times during the balance of the year, in readiness to perform the services as General Superintendent.” This testimony is uncontradicted, the appellant’s seventh prayer was therefore properly refused. In the argument of the case several questions have been presented upon the pleadings, which it is necessary to notice. The plaintiff’ & fount h replication to the fourth plea alleged that the defendant on the 10th day of April 1814 resigned, and refused further to perform his duty. To this the defendant rejoined, by joining issue thereon. It is contended that this was error, that he ought to have traversed. There is no doubt that according to the rules of pleading at the common law the course suggested by the appellant was required. But under our Code much of this strictness has been abolished .Code, Art. 15, sec. 3, provides that “any declaration which contains a plain statement of the facts necessary to constitute a ground of action hall he sufficient, and any plea necessary to form a legal defence shall he sufficient without reference to mere form; this to apply to replications, rejoinders and all subsequent pleadings.” By the subsequent sections it is not necessary to state any formal commencement or conclusion to any plea. No special demurrer is allowed in civil cases, nor — 179 — any general demurrer for a mere informality, provided such statement is sufficient in substance. Under these rules all the pleadings in the cause were conducted, and by them they must be tested. The fourth replication to the fourth plea must be taken as if it had concluded with a verification, and the rejoinder “joining issue thereon” must be understood in tbe same manner as if the defendant had formally traversed it, and tendered an issue by a conclusion to the country, according to the old forms. . We are not to be understood as sanctioning this loose method of pleading. Unquestionably the defendant ought to have traversed the averment in the replication, but the omission to do so in a more formal manner, is no cause for reversal; as the parties proceeded to trial, and the issue was found against the plaintiff. It is immaterial to inquire whether the fifth replication to the fourth plea, was or was not sufficient, it was ruled bad on demurrer, and the plaintiff amended by filing a sixth replication to the same plea, setting out substantially the same matters. But no sufficient proof was offered to support the averments in either of these replications; and the decision upon the demurrer was therefore wholly immaterial. It is objected that the fourth plea was insufficient, this question arises upon the defendant’s demurrer, which mounts up to the first error. It is contended that the plea is defective, and insufficient because it does not aver performance of his duty by the defendant during the time he remained in the service, before he was discharged. But we think this objection is not well taken, and that the plea is sufficient in this respect. According to its true construction, it avers that the defendant was illegally dismissed, and prevented from discharging the duties of his position during the entire year, the averment being that “the said defendant after said — 180 — dismissal and at all times during the continuance of said year was ready and willing, &c. and offered so- to do, hut was prevented from so doing by the said plaintiff,” &c. (Decided 21st June, 1876.) Rut it is objected that the claim or demand alleged in the plea is not a proper subject-matter of set-off; because it is in its nature unliquidated. This question is presented by the appellant’s sixth prayer. The right of set-off is given by the Code, Art. 75, secs. 12 and 13. In this case the set-off claimed is a liability of the same nature as that for which the suit is brought, it arises upon the contract existing between the parties, and is for the breach thereof by the appellant. The measure of damages to be recovered is fixed by the contract, and as decided in Jaffray vs. King, 34 Md., 217, is the stipulated salary for the year, less the amount which had been paid him, and less the amount of the money of the company, he may have actually received and not accounted for; there being no evidence in the case that he actually earned or might by due and reasonable diligence have earned, wages in some other employment after his dismissal. Such evidence it would be competent to offer, and would diminish to that extent the claim of the appellee; but in the absence of all evidence of that kind, the sum to which he is entitled is, as before stated,'fixed by the contract, and is under the Code a legal set-off. It was not error therefore to reject the appellant’s sixth prayer. Judgment affirmed.