Ruttle v. Foss

Ostrander, J. (after stating the facts). There are 33 assignments of error, some 25 or 26 of which are mentioned and to some extent relied upon in the brief for appellant. The first five relate to the effect upon the general verdict of the answers to the special questions. We have taken the pains to set out testimony given by plaintiff and by defendant with respect to the bargain or arrangement existing between them. The answers to the special questions in the light of this testimony have not all the significance which is claimed for them. The answer to the fifth question is precisely in keeping with the testimony of defendant, and precisely opposed to that of plaintiff. [146] This is true, also, of the answers to the third and fourth questions. But the answers to the first and second questions are not necessarily inconsistent with a general verdict for the value of services performed in the What Cheer coal field and described in the first item of the plaintiff’s bill of particulars. They are consistent with plaintiff’s testimony to the effect that he was to be “compensated, taken care of,” but in just what manner there was no agreement. But they are also consistent with the testimony of defendant and with the theory of plaintiff’s right to recover only upon an implied contract. Therefore, as affecting the general verdict, none of the answers have any considerable significance unless the jury awarded plaintiff something for his services in the Tuscola coal fields. It is clear, in viéw of these answers, they could not have done so and followed the instructions of the court, except upon the theory that plaintiff might recover, under an implied contract, for services in the Tuscola field. That he could not be permitted to do so is clear. The testimony expressly negatives the proposition. The special findings negative the agreement testified to by plaintiff. The only other arrangement testified to was by defendant. Both claim there was an express agreement. We are of opinion, too, that plaintiff upon this record cannot be allowed to recover, as upon an implied contract, for services in the What Cheer coal field. There was some, though a very narrow, support for such a theory in the case of Ruttle v. Mining Co., which has been referred to, in that plaintiff there admittedly rendered services for the corporation itself, after its organization. In the case ar bar, he was either working for the defendant, under the original contract of hiring, or else he was working under some new arrangement. Plaintiff testifies that there was a new or other arrangement, and states what it was — indefinite at first as to what should be paid him, but later on made certain and definite by an agreement to give him a large amount of the stock of the concern. Inferentially at least, the jury found his testimony to be un - [147] true, since they found he was promised, as defendant says he was, $5,000 only of the stock which was to be sold to him, and if the dividends paid were sufficient to pay for it, it was to be his without other cost to him. The express agreement testified to by the plaintiff is declared upon specially in his declaration, and the breach of the agreement, to his damage, is alleged. Under the testimony the case is not like Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671), and other cases cited for the appellee, and is like, and is controlled by, the familiar rule stated and applied in Swarthout v. Lucas, 101 Mich. 609 (60 N. W. 306); Shaw v. Armstrong, 88 Mich. 311 (50 N. W. 248); Schurr v. Savigny, 85 Mich. 144 (48 N. W. 547). The error numbered 7 is well assigned. There was some evidence of the value of plaintiff’s services, and the court properly refused to direct a verdict upon the ground there was no such evidence. We do not find, upon examination of the record, that the court refused to permit defendant to show what would be fair compensation for plaintiff’s services. He did refuse, and we think properly, to permit defendant to show what, in his judgment, he could have got others for, and to state that he hired a more competent man, whom he named, who was otherwise employed, at a certain salary. It is not disputed that defendant hired plaintiff originally at an agreed salary of $1,400, later increased to $2,000, per annum. This salary plaintiff continued to draw. What plaintiff claims is that, becoming proficient, he continued to earn that salary by the services originally contracted to be paid, and was also able to earn, and defendant employed him to earn, other compensation for other services. It appears to be claimed, although the claim is not very clearly made, that the remedy of plaintiff is in an action for damages for breaches of the express oral agreements to which he testifies. If it is meant that, having been employed under an arrangement to have some compensation — to be taken care of — the manner and method being left to defendant, and defendant, having later indicated [148] the method to plaintiff’s satisfaction, refused to carry it out, as he had the power, if not the right, to do, plaintiff is thereby debarred the action to recover what his services were worth, we do not agree with counsel. If it is assumed that compensation in some, but in an indefinite, form was promised, in consideration of which the services were performed; that defendant upon occasion stated to the satisfaction of plaintiff that compensation should be in the form of stock, in a corporation to be formed, and later, the corporation having been formed, refused all compensation — we know of no rule of law which would prevent plaintiff from recovering in money the reasonable value of his services. Whether a corporation should be organized depended upon defendant. Whether the offer of stock should be large or small depended upon defendant. Whether he should transfer any stock was a matter of his choice. The fact that he proposed to give a certain amount of stock, and plaintiff said he would accept it, if given, as his compensation, does not, the stock being refused, and all other compensation being refused, require plaintiff to forego compensation, as such, or deny him an action for its recovery. Various assignments of error are based upon .rulings admitting testimony over objections. ■ We .think it not necessary to notice them specifically. It is to be said generally that the real issues are narrow, and that testimony concerning the defendant’s connection with the Wenona Coal & Mining Company, the salary he drew therefrom, the manner in which he acquired certain of its stock, especially that later transferred to plaintiff, is irrelevant. We regard the errors, eleventh to fifteenth, inclusive, well assigned. The same should be said of the testimony of plaintiff concerning the quantity of coal in the What Cheer field, and the seventeenth error is well assigned. Reading the whole of the charge to the jury in connection with the requests to charge preferred by defendant [149] does not convince us that there was error therein, except as already indicated. Other errors assigned are not considered, since it is not likely that for the purposes of a new trial their consideration is necessary. The manner in which the record and the brief for appellant have been prepared calls for notice. The case is one in which compliance with Rule 40 of this court would be of especial benefit to the court. The questions presented and the errors relied upon are, for the most part, discoverable only in the course of reading a general discussion, which often precedes any reference whatever to the error alleged. The record contains more than 360 pages. There has been an apparent, but only an apparent, attempt made to reduce the testimony given to narrative form. It is interspersed with the colloquies of counsel, and of counsel and the court, which are without possible consequence to the errors relied upon. We are of opinion that the case for the appellant upon this appeal ought to have been presented in a record of 150 pages, and that his taxable costs should be so limited. The judgment is reversed, and a new trial granted. Montgomery, C. J., and Hooker, Blair, and Stone, JJ., concurred.