Hesse v. John A. Colby & Sons

Mr. Justice Barnes delivered the opinion of the court. 5. Master and servant, § 80*—when question of law only presented in pleadings. In an action to recover on a written contract of employment where the pleadings show a contract for personal services, and also show as an admitted fact that contractor died before any of the instalments of salary sued for fell due, the pleadings present merely a question of law. 6. Contracts, § 164*—when parol proof inadmissible in construction of. In an action to recover on a written contract for personal services, contract construed and held not ambiguous or uncertain so as to require proof of extraneous facts or circumstances in aid of construction. 7. Contracts, § 164*—how unambiguous contract construed. Where the language of a written instrument is unequivocal it must be construed as written. 8. Master and servant, § 11*—when contract for personal services construed as providing for bona fide exercise of judgment by employee whether able to work. A contract providing that the master shall pay to the servant a stated sum each month during the term of the contract, the servant to perform such services for the master “as she may be physically able to perform without injury to her health or strength,” and making the servant the judge as to whether she is able to work within the meaning of the contract, does not leave it optional with the servant whether to work or not, but calls for a bona fide exercise of her judgment in that regard. 9. Master and servant, § 11*—how contract for rendition of personal services construed. In an action to recover on a written contract providing that defendant should pay plaintiff’s intestate a stated sum of money each month during the term of the contract, intestate to “perform such clerical services” for defendant “as she may be called upon to do and as she may be physically able to perform without injury., to her health or strength,” and making intestate the judge of whether she was able to work within the meaning of the contract, the contract reciting that it was executed in part consideration óf a general release given by intestate to defendant and others of liability for injuries sustained by intestate, held that the contract was to be construed as contemplating that defendant was to have the benefit of intestate’s services whenever by a bona fide exercise of her judgment she was able to work without injury to her health or strength, and that in addition to the sum paid as consideration for the release defendant was to furnish intestate with employment for the term of the contract at the stipulated salary without deductions for absence when unable to work. 10. Trial,—when .finding and judgment for defendant enteradle upon motion mthout evidence. Where the pleadings in trial without a jury present no issue of fact and no cause of action, it is proper on motion to enter a finding and judgment for defendant without evidence. 11. Contracts, § 289*—how contract for personal services terminated. A contract for personal services is terminated by the death of contractor.