Gold v. Spector

Rugg, C.J.

The plaintiff seeks in this action to recover damages for breach of a contract made with the defendant *111 to employ her for a definite time at specified pay. The only question presented is whether there was error in the denial of the defendant’s motion for a directed verdict in his favor. There was evidence tending to support the allegations of the plaintiff to the effect that the contract was made and that the plaintiff was discharged by the defendant before its termination.

The only contention now 'made by the defendant is that it appeared from the plaintiff’s testimony that her conduct was so insubordinate as to justify the defendant in discharging her.

Whether the defendant was warranted in discharging the plaintiff before the expiration of the term of employment by reason of her conduct was an affirmative defence by way of confession and avoidance. McNeil v. American Bridge Co. 196 Mass. 56 . Sayles v. Quinn, 196 Mass. 492, 496 . Wood v. Blanchard, 212 Mass. 53 . The burden of proof on this point rested on the defendant. Davis v. Jenney, 1 Met. 221 . Selleck v. Garland, 184 Mass. 596 . Wylie v. Marinofsky, 201 Mass. 583 . Gillespie v. Bopp, 225 Mass. 534 . It rarely can be ruled as matter of law that an affirmative defence has been sustained. Commonly it is a question of fact. McDonough v. Metropolitan Life Ins. Co. 228 Mass. 450, 452, 453 .

The testimony of the plaintiff was explicit and categorical that she performed every obligation imposed on her by the contract. This was somewhat shaken on cross-examination where she gave answers indicative of a refusal to do her work as the defendant wanted. Thereby confusion and inconsistency were introduced calling for careful scrutiny and sound judgment by the jury to determine the weight of her evidence. Tierney v. Boston Elevated Railway, 216 Mass. 283 . Kerr v. Shurtleff, 218 Mass. 167, 170 . Comstock v. Biltmore Amusement Co. 227 Mass. 146, 150 . Connors v. Richards, 230 Mass. 436, 438 . Whiteacre v. Boston Elevated Railway, 241 Mass. 163 . These were not as matter of law binding admissions by the plaintiff. The case on this point is distinguishable from cases like Sullivan v. Boston *112 Elevated Railway, 224 Mass. 405 , and Goodwin v. E. B. Nelson Grocery Co. 239 Mass. 232 .

The case rightly was submitted to the jury. It is governed by McIntosh v. Abbot, 231 Mass. 180 , and Hanneman v. Shlivek & Sons, Inc. 235 Mass. 317 .

Exceptions overruled.