
    Marx v. Miller.
    . Action to recover Damages for Breach of Contract of Employment.
    
    
      1. Breach oj contract of employment; how treated oy employe. ■When a person contracts to perform personal service for another for a specified term at stipulated wages, and is discharged without fault on his part before the expiration of the term, he may treat the contract as broken and at an end, and immediately sue and recover all the damages he may have sustained up to the time of the trial, or he may elect to treat the contract as continuing and keep himself in readiness to perform the contract on his part, and at the expiration of the term recover upon it for wages on account of constructive services rendered -thereunder.
    2. Same; action therefor; sufficiency of complaint. — Where a person who has contracted to .perform services for another for a specified time at stipulated wages, is discharged without fault on her part before the expiration of the term, and treats such contract as having been, broken and brings an action to recover damages -or the breach of such contract, the averment in the complaint of tne making of the contract, it,a terms and its breach by the defendant is all that is necessary* to state a cause of action; and it is not' necessary that the plaintiff should furuier aver her readiness and willingness to perform the services throughout the term of the contract, or that she used reasonable diligence to obtain the same or similar employment after her discharge by the defendant.
    3. Pleading and practice; when overruling motions to strike certain portions of the complaint not revisadle. — Where a complaint contains averments which are immaterial and mere surplusage, the denying by the court of a motion by the defendant to strike such portions of the complaint is not revisable.
    4. Contract of employment; construction thereof. — Where a person is employed for a year at a stipulated annual salary, which is to be paid weekly or monthly at her election, and the contract of employment provides that “in consideration of the above employment” the said person “party of the second part is to take charge of the dressmaking department of the party of the first part, as manager and dressmaker in his business at Birmingham, Alabama,” and is to have enuire management and control of the department, such person is not employed as a dressmaker, but as superintendent or manager of the dressmaking department of her employer, and such contract imposes no obligation upon her to do the work of a seamstress; and, therefore, upon such person refusing to do the work of a seamstress at the request of her employer, such employer has not a right to discharge her, and the discharge of. .such person for such refusal constitutes a breach of the contract of employment, which renders the employer liable in damages.
    Appeal from the City Court of Birmingham.
    Tried before the Hon. *Ohas. A. Senn. ■
    This action was brought by the appellee:, Martha E. Miller, against the appellant, Fex’d Marx. The complaint contained but one couxxt which was in words, and figures as follows.: “The plaintiff, Martha E. Miller, claims of the defendant, Ferd Marx, $450, with interest thereon as damages for the breach of an agreement'entered into by the defendant on'the 18th day of June, 1900, in substance as follows: Defendant employed plaintiff at a salary of $1,800 per year, to be paid weekly or monthly, at plaintiff’s election, to. take charge of the dressmaking department of the said defendant in his said business in Birmingham, Ala., during the period beginning September 1, 1900, and ending September 1, 1901, and plaintiff avers that she entered in. the performance of her said contract, on to-wit, the first day of September, 1900, and continued to perform her sendees, as said manager faithfully and efficiently, though often interfered with by defendant or his employes, until to-wit, the 3d day of June, 1901, when though plaintiff ivas ready, able and willing and offered to perform and continue her said service, she was. prevented by the wrongful acts of defendant from performing her1 contract with defendant, and without fault on her part was discharged by defendant from her further service for the defendant and her work room closed, and most of the, employes therein discharged, and she was directed that her services were not further needed, and that her contract with defendant was ended, though there was yet three months of the time for which said contract Avas to. continue, to-Avit, June, July and August, 1901, thaitl she has been prevented from executing by the said wrongful acts of defendant in discharging her. And plaintiff avers that at this season of the year it is difficult if not impossible, to obtain any like services for the unexpired term of her contract, to-wit, June, July and August of 1901, and she Avill thereby, on account, of said wrongful discharge and breach of said contract by said defendant, Marx, be damaged to the amount of four hundred and fifty and no-100 dollars, and interest thereon, hence this suit.” The defendant demurred to this complaint upon the following grounds: “1st. Because it is shown in and by the terms of the contract sued upon that the wages claimed are not due. 2d. Because it is sboaaui by the averments of the complaint that the suit is prematurely brought. 3d. Because it is mot averred in said complaint, that plaintiff has been unable to obtain like employment for the unexpired term of her contract. 4th. Because it is not shown by 'said complaint that plaintiff has held her’self in readiness to perform her contract. 5th. Because the plaintiff has failed to* aver in her complaint a readiness and willingness on; her part to* perform her contract throughout the time she undertook to serve.” These demurrers were overruled.
    The defendant moved the court to strike from the complaint the last paragraph therein commencing “And plaintiff avers that at this season of the year,” etc. The court overruled this motion, and the defendant duly excepted.
    The defendant pleaded the general issue and by special plea set up that the plaintiff had refused to* obey the reasonable .orders of the plaintiff, her'employer, in that; she refused to work on garments* in the dress making department, and that her disobedience m this respect justified the rescission of the contract of the defendant and authorized plaintiff’s discharge.
    The plaintiff demurred to the special plea upon the ground that it is not averred that the work requested by the plaintiff was work that she was employed to* do, and that said pleas set up no- defense to the action. This demurrer was sustained. The other- facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion; it being unnecessary to set out in detail the rulings of the trial court upon the evidence, or the facts relating thereto.
    'There were verdict and judgment for the plaintiff, assessing her damages at $166.50. The defendant moved toe court to* grant him a new trial, on the ground that the court erred in its rulings upon the pleadings and upon the evidence, and that toe verdict of the jury was contrary to the law and toe evidence. This motion was overruled, and the defendant duly excepted. The defendant appeals, and assigns as error toe several rulings of the trial court to which exceptions were reserved.
    Morris Loveman, for appellant.
    The demurrer to toe complaint should have been sustained. — Knox v. Morris Mm, Oo., 96 Ala. 320; Wilkerson v. Black, 80 Ala. 332.
    
      The plaintiff was not entitled to recover tinder the facts of the case.' — th. V. T. üo., v. Way, 83 Ala. 542; Bir. Electric Go. v. Olay, 108 Ala. 233.
    Rudulph & Huddleston, contra.
    
   TYHON, J.

It is thoroughly settled in this State that when a person contracts to perform personal services for another for a specified term, at stipulated wages and is discharged, without; fault on her part, before the expiration of the term, she may treat the con-trait as broken and at an end, and immediately sue and recover all the damages she may have sustained up- to the time of the trial. But she is not compelled to accept the breach of her employer a¡s a termination of the contract,; she may elect to treat it as continuing and keep himself in readiness to perform the contract on her part. Davis v. Ayres, 9 Ala. 292; Martin v. Everett, 11 Ala. 375; Ramey v. Holcombe, 21 Ala. 567; Fowler v. Armour, 24 Ala. 194; Strauss v. Meertief, 64 Ala. 299; Holloway v. Talbot, 70 Ala. 389; Wilkinson v. Black, 80 Ala. 329; Morris Mining Co. v. Knox, 96 Ala. 320.

It will be noted that in the case under consideration the plaintiff counts alone on the breach of the contract, treating it as broken by defendant and at an «miel!. The complaint contains only one count and there is no recognition of the continuing existence of the contract, no attempt to recover upon it as such, or for wages on account of constructive services rendered it; but as we have said, it is to recover damages arising out of a breach of it by defendant. • Where this is the case the averment of the making of the contract, its terms and its breach by the defendant and the plaintiff’s willingness and ability to perform at the time of the breach is all that is necessary. . While it is doubtless true where the plaintiff sues upon the contract, for full compensar tion for a stipulated term, which suit cannot, of course, be maintained until after the expiration of such term, the complaint must aver a readiness and willingness on the part, of the plaintiff to perform the services throughout the term he bound himself to serve, this averment is not necessary where the action is, as here, for a. breach of the contract by defendant, treating it as terminated. Pierce v. Tenn. Coal, Iron & R. Co., 173 U. S. 1; DePyster v. Pulver, 3 Barb. 284; 2 Chitty. on Cont, (11 Am. ed.) p. 1080 amid note. Non is it necessary that the complaint should allege that the plaintiff used reasonable diligence to obtain the same or similar1 employment after her discharge by defendant. As to whether she could have obtained the same or similar 'employment, is a matter* of defense. — Strauss v. Meertieff, supra; Wilkinson v. Black, supra; 13 Ency. Pl. & Pr. 916 and notes; 1 Am. & Eng. Ency. Law (2d ed.), 1106-7. The demurrer to the complaint as origimlailly framed was properly overruled.

Nor was there any error of which the defendant can complain, in the overruling of his motion to strike a certain paragraph from the complaint. It was immaterial and should have been treated as mere surplusage. Being surplusage the denying of the motion is not revisadle. — Davis v. L. & N. R. R. Co., 108 Ala. 662. If it was conceived by defendant to- be- material, but defective*- in averment, the defect- could not be reached by motion. — 14 Ency. Pl. & Pr. 91. He should have taken advantage of the sup-posed defect by an objection to evidence offered in support of allegations contained in it or by charge;-. — Daughtery v. Am. Union. Tel. Co., 75 Ala. 168.

It will doubtless, be said that objection was made, and an exception reserved, to the statement of plaintiff introduced to- prove the allegation in the paragraph that at “this season of the year it is difficult, if not impossible to obtain any like services for the unexpired term of her contract.” This exception, however, will be disposed of later.

The contract between thei parties was in writing. By its terms the defendant bound himself to pay the plaintiff eighteen hundred dollars for the year beginning September 1,1900, and ending September 1, 1901, to be- paid weekly or monthly at the plaintiff’s election; and the plaintiff obligated herself “to take charge of the dress-* making department” of defendant, “as manager1 and dress-maker,” with power to- employ and discharge the employes itm said department and to have entire management and control of the department, bnt to confer and advise with defendant from time to time witn reference to the best interest of said department of said business. It is entirely plain from the foregoing statement of the contract which is a substantial copy of it, that the plaintiff was not employed as a, dress-maker, but as superintendent or manager of the defendant’s dressmaking department which the evidence shows was. operated by him in connection with his other mercantile business. The word “dress-maker,” when taken in connection with the entire context of the contract, cannot be construed as meaning that she was employed as a seamstress'. Indeed, should we confine our reading of the contract to the sentence in which it is found, to-wit, “In considera.tion of the above 'employment, the said Martha E. Miller, party of the second part, is to take charge of the dress-making department of the party of the first part, as manager and dress-maker, in his business at Birmingham, Alabama,” it is entirely clear that the words “as manager and dress-maker” are merely descriptive of the position or office which the plaintiff ivas to fill, and1 imposed no obligation upon her to do' the work of a seamstress. The1 testimony shows Avithout dispute that defendant discharged the plaintiff because of her refusal to do the work of a seamstress. This, as ive have said, she urns under no duty to- do. under tlie contract. She, therefore, had the right to refuse to. do it and her discharge for this refusal was. a breach of the contract by the defendant Avhich rendered him liable in damages, to. her. On the undisputed faot.s. she would1 have been entitled to have had the court charge the jury affirmatively to find a Arerdict in; her favor. This being true, the exception reserved by defendant, to the introduction and exclusion of testimony, which did not in- the remotest degree tend to, produce a conflict, in the evidence under which plaintiff was entitled to recover, are of no avail. The Bienville Water Supply Co. v. City of Mobile, 125 Ala. 178; Glass v. Meyer, 124 Ala. 332.

It is scarcely necessary to say in conclusion, there Avas no error in refusing the motion for a new trial.

Affirmed.  