Prescott v. Puget Sound Bridge & Dredging Co.

Dunbar, J.

This is the second appeal in this case. It was here before upon a question of the sufficiency of the complaint. We then held that the contract sued upon was not void for uncertainty. 31 Wash. 177 , 71 Pac. 772 . When the cause was remanded, the defendant filed an answer, denying generally the allegations of the complaint, and alleging affirmatively that, by reasonable diligence^ plaintiff could have obtained employment of the same kind and of equal wages as alleged in the complaint, and that plaintiff was in no wise injured or damaged by the act of defendant. The affirmative defense was denied by the reply. On these issues the cause was tried to the court and a jury. Verdict was returned in favor of the plaintiff for $700. Judgment *355 was subsequently entered upon the verdict, and the defendant appeals.

It is alleged that the court erred, (1) in overruling the defendant’s objection to the impaneling of a jury to try the cause, which objection was based upon the ground that the $12 jury fee required by the statute of 1903 had not been paid as the law requires; (2) in not granting defendant’s motion for nonsuit, which motion was based upon the ground that the plaintiff had failed to sustain the allegations of his complaint; (3) in not granting defendant’s request for peremptory instructions to the jury to return a verdict for defendant; (4) in allowing plaintiff to introduce evidence showing the length of time that work at Manila would last; and (5) error in certain instructions which we will notice as we proceed.

There is no merit in the first assignment of error, as the jury fee was paid. The second and third assignments are based upon the same hypothesis, viz., that the proof failed to sustain the allegations of the complaint. This question was submitted to the jury on competent testimony, and this court will not disturb its finding in that respect.

The pivotal question in this case is involved in assignment four, alleging error in allowing plaintiff to introduce evidence showing the length of time that work at Manila would last. A copy of the complaint in this action will be found in 31 Wash. 177 , 71 Pac. 772 , supra. It is contended by the appellant that* in no- event, could this contract be construed to be a contract for more than a month, and that the former decision of this court was only to the effect that the contract was not so indefinite as to render the same void, and could not be construed to go further than holding that plaintiff was at least entitled to nominal damages. The decision of this court on the former appeal has become the law of the case, so that the construction of such decision is the important question to consider here. We do not think, from a review of such decision, that it can bear the limited *356 or restricted construction placed upon it by tbe appellant In the course of the opinion it is said:

“The contract was one which, if it did not give the apipeilant the right to enter at once into the service of the respondent, gave him the right to enter therein within a reasonable time after- its execution; and was broken, within either view, when the respondent wrongfully, and without cause, refused to permit the appellant to enter into the service at all. It was not, therefore, so indefinite and uncertain as to the time of the commencement of the service as to render it void. Hor was it so indefinite and uncertain as to its duration as to render* it void. While its duration was uncertain in the sense that it was not shown how long the work undertaken by the respondent at Manila would last, yet it was not a contract of employment' for an indefinite period in the sense that either party could' terminate it at will. It was a contract to. serve on the one part and to employ on the other, obligatory upon each until the happening of a particular event, and until that event happened neither party could terminate the contract without committing a breach thereof.”

It will be readily seen that the happening of the particular event in this case was the finishing of the projected work at Manila, and the language of this court is absolutely inconsistent with the idea that the damages for the breach would only be nominal, or that the contract could be terminated at the end of the month by either party to the same. The court continuing said:

“A contract of hiring is not indefinite, nor terminable at will, because the precise number of days, months or years that the service is to continue, are.not specified. If there is a period of time, be the same fixed or indefinite, during which neither party is at liberty to terminate the contract, then the contract is not so. indefinite or uncertain as to its duration as to be incapable of enforcement.”

And it was there held that this particular contract was not so indefinite that either party was at liberty to terminate it. It seems to us that all the questions which are raised *357 on this appeal, with the exception of the assigned error in relation to tire amount of the judgment, were necessarily involved and decided in the former appeal; for, if the construction that we now place upon the former opinion of this court is correct, the lower court in the present trial did not err in allowing plaintiff to introduce evidence showing the length of time that work at Manila would last, because the ascertainment of this fact was necessary to determine the damages which were sustained by the plaintiff by the violation of the contract on the part of the defendant. The other instructions complained of embrace substantially the same objections.

Finding no error in the record, the judgment is affirmed.

Fullerton, J., concurs.