Cumberland & Pennsylvania Rail Road v. Slack

Master and Servant — Discharge of an Employe during the term of Service — Exclusion of Evidence because not Offered at the Proper time — Pleadings—Set-off—Measure of Damages. The O. & P. R. R. Co. employed S. as its General Superintendent. The employment was by the year, commencing on the 1st of January of each year, at an annual salary, payable monthly. He was so employed for the year 1874, and on the 9th day of April of that year, when he received the following letter from the President of the company: “Dear Sir — I am satisfied that the interests of this company require a re-organization of its local management by the concentration of its affairs in Allegany County under one head. Accordingly I write by to-day’s mail to the 2nd V. Presdt. to assume charge of the rail-road. Recent circumstances have confirmed the opinion above expressed. I presume you will prefer to retire by means of a resignation. It is hereby understood that the same is accepted, and you will please telegraph me of its transmission, as I have instructed the 2nd V. Presdt. to take charge of the rail-road immediately on the receipt of my letter. Please confer with Mr. M. in turning over the papers in the Supt’s Office.” S. at once acted in accordance with the terms of this letter by surrendering to M. the Vice-President the entire charge and control of everything, and at once left the service of the company, and had nothing to do with the affairs of the road after that time. On the next day he addressed a note to the President in which he writes: “I hereby resign the position of Geni. Supt. of the O. & P. R. R. Go. and'branch roads, to take effect at once.” In an action of assumpsit brought by the R. R. Go. against S. to recover money alleged to be due by him to the company, he pleaded his discharge, and claimed to set-off the amount due him for salary from the time of his leaving the service of the company to the end of the year. Held : 1st. That the letter of the President of the company operated as a positive and peremptory dismissal of S. from the service of the company. 2nd. That the note . f Id. written the next day could not change its character or construction, 01 show that he voluntarily resigned; nor could it be construed as an acqui .scence in his dismissal. The plaintiff by replication to the plea of set-off, justified the discharge of S. on the ground of his intemperate habits. After the plaintiff’s witnesses had all been examined and its attorney announced to the Court that it had closed its case, and after the testimony of the defendant had been given and the case ' on his part had also been closed, the plaintiff called a witness who had already been examined for it in chief, and proposed to prove by him the alleged intoxication of the defendant. On objection to its admission the evidence was excluded. Held : - ' 1st. That the evidence was properly excluded. 2nd. That the question of its admission when offered was within the discretion of the Court below, and was not reviewable on appeal. The plaintiff's fourth replication to the defendant’s plea of set-off, alleged that the defendant on the 10th. day of April, 1814, resigned, and refused further to perform his duty. To this the defendant rejoined by joining issue thereon. Held : 1st. That according to the rules of the common law this replication should have ' been traversed. 2nd. But that under the provisions of the Code in regard to pleadings, the replication must be taken as if it had concluded with a verification, and the rejoinder “joining issue thereon” must be understood in the same manner as if the defendant had formally traversed it, and tendered an issue by a conclusion to the country. 3rd. That the above construction of said pleadings was not to be accepted as . a sanction of so loose a style of pleading, but merely as declaring the failure of the defendant to traverse the averment of the replication to be no ground for reversal on appeal, the parties having proceeded to trial and the issue been found against the plaintiff. Where a replication is ruled bad on demurrer, and an amended replication is filed setting out substantially the same matters, but no sufficient proof is offered to support the averments in either'of said replications, the decision upon the demurrer is to be regarded as wholly immaterial. The defendant in his above-mentioned plea of set-off based on his dismissal by the plaintiff, Having averred, that he was’illegally dismissed and prevented from discharging the duties of his position during the entire year, it was Held : 1st. That it was unnecessary for him to aver performance of his duty during the time he remained in the service; and that the measure of damages to which he was entitled by reason of his discharge was fixed by the contract of employment, and was the stipulated salary for the year, less the amount which had been paid him, and less the amount of the money of the Company which he might have actually received and not accounted for; and being therefore fixed by the contract was a legal set-off under the Code, Art. 15, secs. 12 and 13. .2nd. That it would have been competent for the plaintiff in reduction of such damages to have offered evidence that, the defendant actually earned, or might by due and reasonable diligence have earned wages in some other employment after his dismissal.

Appeal from the Circuit Court for Allegany County. The case is stated in the opinion.of the Court. The defendant, among other pleas, filed the following, which is the only portion of the pleadings necessary to he set out at length, the other pleadings being sufficiently stated in the opinion of the Court: 4th. And for a fourth plea, the said defendant-says, that he, the said defendant, was employed by the said plaintiff as G-eneral Superintendent of its railroads and of the Eckhart railroad for the period of one year, commencing therefor on the first day of January, in the year eighteen hundred and seventy-four, and ending therefor on the thirty-first day of December of said year, at and for the salary of five thousand dollars, and that the said defendant was at all times during said year, ready, willing and anxious to perform the services of said Superintendent as aforesaid, according to the terms of said employment, hut that the said plaintiff unjustly and wrongfully, and without legal cause, discharged the said defendant from said service' and said employment before the end of said year, and the said defendant after said dismissal and at all times during the continuance of said year, was ready and willing to perform said services and offered so to do, hut was prevented from so doing by said plaintiff, the said defendant therefore avers, that the said plaintiff is indebted unto him, the said defendant, in the said sum of five thousand dollars, and that so much of said sum as may be necessary therefor, the said defendant is willing to off-set against the plaintiff’s claim. At the trial the plaintiff offered the following prayers: 1. That if the jury find from the evidence in the cause that the defendant was the General Superintendent of the-' plaintiff prior to and up to the tenth day of April, 1874, and that it was his duty while so employed to receive and keep account of the moneys paid to the plaintiff, and that he did receive and keep account thereof, and that the defendant left the employment of the plaintiff on that day, and that Henry J. Kenah then took the place of the defendant in receiving said moneys and keeping of said accounts, and received and kept the account of the moneys' so paid to the plaintiff, and that said Kenah, after taking charge of said accounts,. had a conversation with the defendant, in which he told the defendant that the cash account did not balance and that cash was short, and that the defendant said that he knew it was, and that the defendant then gave said Kenah the two papers signed by him, and marked “Slack, $700, and Slack, $953.61,” now in evidence, to account for the deficiency of said cash, and told said Kenah that he had never received any part of said last named sum, and that said defendant after-wards had a conversation with James A. Millholland, the Yice-President of the plaintiff, concerning said sum, in which said Millholland asked said defendant to explain said matter, and tell him who were the parties who owed said sum to the plaintiff, and also wrote the letters of said Millholland in evidence, and that the defendant refused to explain as requested, then the jury may find that the defendant received said sum of $953.61, and was liable to the plaintiff for the same in this action. 2. That if the jury find from the evidence that the defendant was in the employ of the plaintiff, as General Superintendent of its railroads, in the year 1869, and from that till the month of April, 1874, and that it was his duty during that time to collect the revenues of the plaintiff, and to employ the other agents along said road, and that he had power to control them and to "discharge them, if they failed to perform their duties, and that Godfrey Berkebill was one of said agents, subject to the power of the defendant, entrusted with the collection of part of its revenues, and that said Berkebill, in the year 1869, while acting as said agent, became largely indebted to the plaintiff for moneys collected by him as said agent and not paid over, and that said defendant took the note of said Berkebill for part of said sum, payable to- the plaintiff, and that said defalcation then became known to the defendant, and that said Berkebill continued to collect and receive other moneys of the plaintiff between the year 1869 and 1872, with the knowledge of the defendant, which were also held hy said Berkebill and not paid over, and that the defendant from time to time knew of the same, and did not take any legal steps to collect said moneys, and did not discharge said Berkebill, and that said defendant left the service of the plaintiff on the 10th of April, 1874, without informing the plaintiff of the misconduct of said Berkebill, or of his having said note, or taking any legal steps to enforce the collection of said moneys, and did not deliver said, note to the plaintiff, and from the said 10th day of April, in the year 1874, neglected and refused to inform said plaintiff of said misconduct, although then requested by the plaintiff to do so, then the defendant did not do his duty as said General Superintendent, and was not ready and willing to perform the same, and cannot he allowed for the set-off as claimed by him, on the pleadings and evidence in this cause. 3. That if the jury find the facts stated in the second prayer to he true, then the defendant did not use due diligence to collect the said moneys from said Berkebill, and the plaintiff had good cause for discharging the defendant, and he cannot he allowed his said set-off. 4. That if the jury find from the evidence that it was the duty of the defendant, during his employment as said Superintendent, to collect the moneys due to the plaintiff from its several agents, who had received the same, and that he was such Superintendent prior to and from the year 1869, till the 10th of April, 1874, and that Godfrey Berkebill, one its agents, had collected and retained in his possession a large sum of money of the plaintiff in 1869, and that the defendant then, or shortly thereafter, knew of such collection and detention, and took the note of said Bez’kebill, payable to the plaintiff for said indebtedness, and that said' Berkebill from 1869 to 1872, continued to z’eceive other large szzms of money of the plaintiff, and neglected to pay them over to the plaintiff, and that the-defendant in the year 1872 and pzdor thereto knew of such collections and detentions, and permitted said Berkebill to remain in his said place as agent and to collect said, moneys without informing the plaintiff of the same, or that he had taken said note until after the bringing of this suit, and used no legal means to collect said moneys, from said Berkebill, and refused to inform the plaintiff of the misconduct of said Berkebill until after the end of the year 1874, although requested to do so during the month-of May'in said year, then the defendant did not perform his duty as said Superintendezzt and was not z’eady and-willing tó .do so and cannot be allowed for set-off as claimed. 5. That if the jury find the facts stated in the plaintiff’s fourth prayer, then the defendant did not zzse due diligence to collect said money from said Berkebill, and' therefore, the' plaintiff had good cazzse for discharging said defendazzt, and the' defendant cannot receive or be allowed his said set-off. 6. That the defendant cannot be allowed his set-off under his fourth plea in this cause. 7. That there is no sufficient evidence in the cause to prove that the defendant was ready and willing to perform bis duty as General Superintendent as stated’ in the proceedings in the cause. 8. That if the jury find from the evidence in this cause-, that the defendant was employed by the plaintiff as General Superintendent and Manager of its roads from the 31st day of December, 1873, to the 31st day of December; 1874, at the salary of $5000 per year, payable monthly, and that on the 8th day of April, 1874, the defendant was discharged by the plaintiff, and his salary paid to the 31st day of March, 1874, yet the jury cannot find a verdict for the defendant, unless they shall further find that such discharge was wrongful and without cause. 9. That although the defendant was discharged by the plaintiff in the month of April, 1874, yet if they find that on the 10th day of April, 1874, the said defendant sent his resignation to the plaintiff, then they can find from such resignation an acquiescence in the plaintiff’s discharge by the defendant, and if they do so find, and that the defendant never offered to go back into the plaintiff’s employ, then the defendant cannot be'allowed to set-off as against the plaintiff’s claim such part of his salary as accrued after said resignation. 10. That if the jury find that the letter of Allen Campbell, the President of the plaintiff, of the 8th of April, 1874, was written to and received by the defendant on the 9th of April, 1874, and that the defendant thereupon wrote the note of the 10th of April, 1874, to said Campbell, then they may find that said defendant consented to and acquiesced in the order and proposition of the said letter of said Campbell, and if they do so find, the defendant cannot be allowed his set-off after that time. 11. That if the jury find from the evidence in the cause, that the defendant was in its employ as General Superintendent from the year, 1869, till April 1874, that it was his duty to receive and collect its revenues from the different agents of the plaintiff, during that time, that Godfrey Berkebill was one of said agents intrusted with the collection of part of its revenues during that time, that said Berkebill, in the year 1869, became indebted to the plaintiff in a sum of more than $600 for money so collected, and neglected and refused to pay over the same, and that said defendant knew of said defalcation shortly after it occurred, and took the note of said Berkebill for the same, and that said Berkebill continued to receive other moneys of the plaintiff from that time until the year 1812, and neglected and refused to pay them over to the plaintiff, and that in the month of January, 1814, there was more than $9U0 so due from said Berkebill to the plaintiff, and that defendant had knowledge of said several defalcations shortly after they occurred, and that the defendant had the power during all that time to discharge said Berkebill and did not do so, and did not inform said plaintiff of said defalcation, and that he left the service of the plaintiff in April, 1814, and took said note with him, and did not then or at any time prior to the bringing of this suit, deliver said note to the plaintiff, or inform it of the existence of said note, and did not collect said money, and did not inform said plaintiff of the existence of the said defalcation during the year 1814, or at any time before the bringing of this suit, although requested to do so by the plaintiff about the month of May, 1814, but refused to do so till after the bringing of this suit, then it is their duty to find that the defendant did not perform his duty under the contract pleaded in this cause, and the plaintiff had good cause for discharging the defendant, and that he was not ready and willing to do so as alleged, and the defendant is not entitled to his set-off. 12. And if they find the facts above stated to be true, then it is their duty to find that the defendant did not use due diligence in the collection of said money. And the defendant offered the following prayers : 1. That if the jury find from the evidence in the cause that on the first day of January, 1874, the plaintiff and defendant entered into and made a contract and agreement by which the plaintiff agreed to employ, and did employ the defendant, as the General Superintendent of its railroads in Allegany County, Maryland, for and during the year 1874, commencing therefor on the 1st day of January, and ending on 31st day of December in said year, and that by said contract the plaintiff agreed to pay to said defendant the sum of five thousand dollars for his annual services, and that the defendant, by said contract, agreed to perform and render to said plaintiff the said services for and during said year, at and for said salary, and that the defendant entered on the discharge of his duties under said contract, and that before the expiration of said year the plaintiff wrongfully dismissed him from its service and employment, and refused to permit him to perform said services, and that from and after such dismissal, and during the residue of said year, he was ready and willing to perform said services, and that said year terminated before the filing of his pleas of set-off in this case, and that the plaintiff has not paid to the defendant the whole of the said sum of five thousand dollars, then the defendant is entitled to off-set against the plaintiff’s claim so much of said five thousand dollars as the jury may find remains unpaid, that will equal the plaintiff’s claim. 2. That if the jury find from the evidence in this cause that on the first day of January, 1874, the plaintiff and defendant entered into and made a contract and agreement, by which the plaintiff agreed to employ, and did employ the defendant, as the General Superintendent of its railroads in Allegany County, Maryland, for and during the year 1874, commencing therefor on the first day of January, and ending on the 31st December in said year, and that by said contract the plaintiff agreed to pay the said defendant the sum of five thousand dollars for his annual services, and that the defendant by said contract agreed to perform and render to said .plaintiff the said services for and during said year, at and for said salary, and that the defendant entered on the discharge of his duties under said contract, and that before the expiration of said year the plaintiff wrongfully dismissed him from its service and employment, and refused to permit him to perform said services, and that from and after such dismissal, and during the residue of said year, he was ready and willing to perform said services, and that said salary was payable monthly, and that this suit was brought on September 29th, 1874, and that the sum of money mentioned in the plaintiff’s bill of particulars, includes the sum of $700.00 retained by the defendant on account of said salary, and that there was that amount, and more accrued to and unpaid to the defendant on account of said salary, before the suit was brought, then the plaintiff cannot recover for the said seven hundred dollars in this action. ■ 8. That if the jury find from the evidence in the cause that the defendant did not receive any part of the nine hundred and fifty-three dollars and sixty-one cents, being the amount of the Berkebill deficiency, and that said amount is a part of the money sought to be recovered in this action, then the plaintiff cannot, under the pleadings in this cause, recover from the defendant any part of the said $953.61. 4. That if the jury shall believe from the evidence in the cause that the defendant did not receive any portion of the $953.61, charged in the bill of particulars or account filed in the case, that under the pleadings in the case the plaintiff is not entitled to recover the said sum of $953.61, or any part thereof. 5. That if the jury shall believe from the evidence in the cause that the defendant was employed as General Superintendent of its railroads from the first day of January, 1874, at an annual salary of five thousand dollars per year, payable monthly, and if they shall also believe from the evidence in the cause that the plaintiff wrongfully and without sufficient cause, dismissed the said defendant from his said employment as said Superintendent, that then the defendant would be entitled to claim and recover his salary from the time of said dismissal until the end of the year 1874, at the rate of five thousand dollars per year, payable monthly; and if the jury shall further find that his said salary at said rate was paid by the plaintiff to the defendant, up to and including the 31st of March, 1874, then- the defendant would he entitled to the payment of said salary from the 1st day of April, 1874, until the end of that year; and if the jury shall further find that the defendant was at all times ready and willing to perform the duties of said Superintendent from the time of said dismissal to the end of said year, and if the jury shall find the facts as hereinbefore stated, then the plaintiff is not entitled to recover any portion of the said sum of seven hundred dollars, but the said sum of $700.00 will be a credit on the said year’s salary. The Court, (Pearre and Motter, J.,) rejected the plaintiff’s second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth prayers, and granted its first prayer with an amendment, as follows: Strike out all from and including the words “then the jury may find,” and substitute the following, “is evidence for their consideration upon the question, whether the defendant did in fact receive said money; and if they do so find, the defendant is responsible to the plaintiff for the same.” The Court granted the defendant’s third and fourth prayers, and rejected his first, second and fifth prayers, and in lieu thereof, granted another, marked “Instructions of Court,” as follows: The Court reject the first, second and fifth prayers of the defendant because they all submit to the jury a question of law, and in lieu thereof instruct the jury that there is no evidence in this canse, under the pleadings, that the dismissal of the defendant, if the jury find he was dismissed by the plaintiff from its services, was done for sufficient cause. The plaintiff excepted. The jury rendered a verdict for the defendant, and judgment was entered accordingly. The plaintiff appealed.