
    The Rudolph Wurlitzer Co. v. Black.
    
      Breach of contract — Court to construe terms — Waiver to be determined by fury.
    
    It is the duty of the court to construe the terms of a written contract, in an action for a breach thereof, but the question whether there has been a waiver of any of its terms is one of fact to be submitted to the jury.
    Contracts, 13 C. J. §§ 996, 1009.
    (Decided November 26, 1923.)
    Error: Court of Appeals for Butler county.
    
      Messrs. Andrews, Andrews £ Rogers, for plaintiff in error.
    
      Mr. Clinton Egbert, for defendant in error.
   BAmilton, J.

Plaintiff below, defendant in error here, brought his action against the defendant, plaintiff in error here, for damages occasioned by breach of a contract of employment by discharging him during the term of employment.

The defense was a breach of the contract by Black, in failing and refusing to perform the labor and work required of him.

The case was tried to a jury, resulting in a verdict in favor of Black. Judgment was entered on the verdict, and from that judgment plaintiff in error prosecutes error to this court.

The contract is as follows:

* ‘ Hamilton, Ohio,

“Dec. 31st, 1921.

“ — Agreement—

“It is agreed between the Wurlitzer Piano Co. and J. L. Black that said Black shall give his services as Piano Repairman to said Wurlitzer Piano Oo. at their store in Hamilton, Ohio, for the period of one year commencing Jan. 1st, 1922, and shall receive Thirty dollars ($30) per week for said service. Each week shall consist of (5) five days of eight (8) hours and one (1) day (Saturday) of four (4) hours. All over time to be rated at time and one half. All cash work done by Black is to be turned ini to said Wurlitzer Piano Oo. Black is to have the right to do work for his old customers if done after his hours are filled as above.

“The Rudolph Wurlitzer Co.,

“By A. A. Craig, Mgr.,

“Hamilton Branch.”

“I hereby accept the above proposition,

“J. L. Black.”

It appears from the record that the discharge of Black was occasioned by his refusal to go to Middletown to do some repair work.

The main ground of error urged is error in the charge of the court on this point. The court charged the jury as follows: . ;

“It will be your duty to determine from the evidence in the case whether it was part of, Ms duty under the terms of the contract to have gone to Middletown and performed the services that were directed by the representative of the Wurlitzer Company for him to do. If you find from the evidence that it was his duty to have gone to Middletown and performed the work that he was directed to do by the defendant company or its authorized agent and he refused to do so then that would have been a reason for the defendant to have abrogated the contract or to have rescinded it.”

It is urged that as the contract was in writing, it was the duty of the court to construe it, and not to leave the question to the jury. If this charge was incorrect, plaintiff in error was not injured by the submission of the question to the jury. Had the court construed the contract, under its express terms, the court necessarily would have found that Black was not obliged to go to Middletown to perform the services. If there was a question of waiver, then it would be proper to submit the question to the jury.

It is claimed that the verdict is manifestly against the weight of the evidence.

The evidence of the defense was all to the point of justification for the discharge of Black. We are unable to find after a careful reading of the record sufficient justification for the discharge. That Black had formerly done repair work away from the store in Hamilton was not sufficient to show an abandonment of the terms of the written contract.

Judgment affirmed.

Cushing and Buchwalter, JJ., concur.  