Cronemillar v. Duluth-Superior Milling Co.

Wrusnow, O. J. The appellant rightly claims that, where wages are payable by the month, such circumstance is evidence of a hiring for that period, which will be sufficient, in the absence of any evidence impairing its weight, to sustain a finding that there was a hiring for that period. Kellogg v. Citizens' Ins. Co. 94 Wis. 554, 69 N. W. 362. The difficulty in the present case is that the plaintiff, after testifying that he was hired at $75 a month, freely admitted that Scott’s testimony was true, to the effect that he was employed upon the same conditions as upon his previous employment. It appeared without dispute that under the terms of his previous employment he might quit or be discharged at any time, and that both he and Scott understood that such was the case. Thus it appeared that the fact that his wages were to be payable by the month did not stand alone, but was to be considered in connection with the fact that he was hired under the same conditions as before, both parties understanding that those conditions included the right of either party to terminate the service at any time. It seems certain, therefore, that the minds of the parties met on the proposition that, although the wages were to be payable by the month, the service might be terminated by either party at will. But the contract was for some service. The defendant might doubtless discharge the plaintiff at the end of the first day and perhaps earlier, without liability except for the payment of his ratable wages, but it had contracted to employ the plaintiff for some time, and a refusal to let him go to work at all was a plain breach of its contract, for which [252] plaintiff was entitled to recover at least nominal damages. This proposition seems incontrovertible and was evidently overlooked when tbe nonsuit was ordered and a judgment for tbe defendant entered. Whether such a judgment will be reversed in this court is a question which depends upon the nature of the action. In Laubenheimer v. Mann, 19 Wis. 519, a judgment for defendant, when the plaintiff was entitled to recover merely nominal damages, was held not reversible because it was a case where a recovery of nominal damages would not entitle the plaintiff to costs, hut would subject him to costs in favor of the defendant. This rule was followed in Mecklem, v. Blake, 22 Wis. 495, in a case where a recovery of nominal damages would have been followed by a judgment for costs in favor of the plaintiff, without discussion and without observing the substantial difference between the two situations. In Eaton v. Lyman, 30 Wis. 41, the lapse in Meclclem v. Blake was observed and overruled, and the doctrine established that, where a judgment for nominal damages in plaintiff’s favor would entitle him to costs, a judgment against him would be reversed upon appeal. This rule was recognized and approved in Jones v. King, 33 Wis. 422; Hibbard v. W. U. Tel. Co. 33 Wis. 558; and Enos v. Cole, 53 Wis. 235, 10 N. W. 377, with the exception that it was held in Jones v. King that in penal actions and certain actions ex delicto denominated hard actions the rule did not obtain. The rule was again recognized in Benson v. Waukesha, 74 Wis. 31, 41 N. W. 1017, where a judgment for defendant, although plaintiff was entitled to recover nominal damages, was affirmed on the express ground that in that case the plaintiff would have been compelled to pay the costs even had she recovered. The case was followed without comment in Bilgrien v. Dowe, 91 Wis. 393, 64 N. W. 1025. The general rules governing the subject may he stated, therefore, as follows: (1) Where plaintiff only shows himself [253] entitled to nominal damages, a judgment for defendant will bo affirmed if tbe recovery of nominal damages would not carry costs but would subject tlie plaintiff to costs. An instance of this kind is a ease where an action within a justice’s jurisdiction is commenced originally in the circuit court. . See subd. 3, sec. 2918, and sec. 2920, Stats. (1898). (2) Such a judgment will also be affirmed in penal actions and those actions ex delicto known as hard actions, which include actions of slander, libel, and the like. (3) Subject to this exception, such a judgment will be reversed in an action where it would entitle the plaintiff to recover costs. The present action was properly commenced in justice’s court, and came to the circuit court for trial de novo by appeal of the defendant. A judgment for nominal damages would have entitled the plaintiff to costs, because he would have been the successful party though recovering less than he did in justice’s court. Sec. 2925, Stats. (1898) ; Smithbeck v. Larson, 18 Wis. 183. The judgment-must therefore be reversed, and the action remanded with directions to enter judgment for the plaintiff for nominal damages and costs. By the Gourt. — It is so ordered.