Hughes v. Toledo Scale & Cash Register Co.

BLAND, P. J. (after stating the facts). — 1. Plaintiff testified that for six weeks after his discharge, and within the term of his employment, he was sick at Hot Springs, Arkansas. One who .contracts to labor for a definite term bnt fails to fulfill his .contract by reason of sickness, is liable to have the amount, of his recovery reduced by the damages sustained by his employer in consequence of his not being able to complete the full term of service. Patrick v. Putman, 27 Vt. 759. On the same principle, the plaintiff is not entitled to recover wages for the time he was sick and unable to fulfill his contract, had he been called upon to do so, and his instruction on the measure of damages is erroneous, in that it does not direct the jury to disallow wages for the time plaintiff was unable to work. 2. The contract provided that the plaintiff should give his “whole time and attention and best endeavors to the business of the company.” It was error, therefore, to modify the defendant’s sixth instruction by telling the jury, in effect, that plaintiff might give some of his time to the business of the American Light & Fixture Company, provided such attention did not interfere .with plaintiff’s duty to defendant, thus engrafting on the contract a proviso or stipulation not agreed to between the parties. Courts can neither make, modify, change or add to contracts made between parties, in the absence of fraud or mistake. Their duty is to interpret and enforce them as the parties themselves have made them. Blaine v. Knapp & Co., 81 Mo. App. 627. The modification at the end of the instruction is predicated both upon the pleadings and the evidence and for this reason is not objectionable. 3. There was abundant evidence upon which to predicate instruction No. 1, asked by defendant and refused by the court, and it should have been given. The location and furnishings of plaintiff’s office, as represented to defendant, cannot be said to be of no importance or to have furnished no inducement to defendant to make the [102] contract. According to the. testimony both representations were materially false and should, if not subsequently waived, of which there is some evidence, furnish sufficient ground to warrant defendant in cancelling the contract. 4. There is considerable evidence in the record upon which instruction No. 7, asked by the defendant and refused by the court, could be predicated. If the jury should find the facts as recited therein, the verdict should be for the defendant. Plaintiff was made general agent over a large and important territory of the defendant’s business. He agreed to give his whole time and attention and his best efforts to defendant’s business. His wages were liberal and his contract duty was to serve the defendant entirely, faithfully and energetically, and if he wilfully fell short in the performance of this undertaking the defendant had a right to cancel his contract. 5. Instructions Nos. 11 and 12, asked by the defendant and refused by the court, should have been given. The eleventh instruction properly declares the law. There was no evidence tending to show that plaintiff paid any rent after November 30, 1902, and for this reason the twelfth instruction should have been given. For the errors herein noted, the judgment is reversed and the cause remanded. All concur in result. Goode, J., does not concur in paragraph two.