
    NO. 7246
    W. E. PATTERSON VS ELMER CANDY CO, Incorporated
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIKIOfT,

By hi» Honor, John St. Paul.

^ This is a suit for eleven months salary said to h# duo undsr an allegad coatraot of employment and a discharge without causo.

Plaintiff alleged that on December 16, 1916 he offered to enter defendant's employ for the year 1917 at $100 per month and expenses. That sn February 12, 1917 his prepssitien was accepted by defendant. That after such acceptance defendant attempted tp change ths nature ef the employment to a commission basis; and en Kerch 20th discharged pltd ntiff without causo.

To this petition defendant filed an exception of no oauee ef action, at the trial ef which it was agreed that all the eerroapon danos botwoon the partios should bs filed and "considered as part of the. petition. ■

The trial judge maintained the exception and pld. ntiff appeals;

It le clear from the above that the question presented by the exeeptien ef no cause ef action is net whether the br e reoitala of the petition shew a right te recover, but whether the corresponden* now part ef the petition, show such right. And ws agree with the District judge thdt it dees net.

On Februur y 13th, the very d.% on which a telegram from plaintiff offered t* dose the agreement, defendant wrete that it expected to pay a commission and expense* hut no salary. And sn February 20th, plaintiff wrote " x x I stated I would take your line undsr the impression my proposition of December 16 (salaried) was accepted by' you x I have as objection to working en a commission basis because I know I can earn the salary asked for. If you will giro me a contract for 1917, agreeing to fuwnish expenses, I will start out At one» x x".

Thereafter, from February 23 to March 9th the correspondence was entirely with plaintiff* brother (acting for plAintiff) the substrae* of which shows that plaintiff was away from his horns, and Was undecided whether te accept defondtnt's proposition. And asking an save nee of two weeks expense# money in caoo ho accepted, to be returned if ho did not.

On March 10th plaintiff himself wrote "In th* absonc* of anything definite from you.regarding my representing yon at the fir& of pretest year, I teek a line (from another manufacturer). It was only a temporary arrangement pending something definite from you. I have a few points to mdee ana will then return. Will take up ywur proposition on Commission basis, you advancing my actual travailing expenses and charging same against my commissions. There will be no big business until time to .take orders fsr ’¡’all and holiday seasons x x. Havihg received my brother’s services on more than one occasion te travel for m« x x would suggest, if you prefer to go out at once with you* linn, I can wire him to take line making Rastírn R. C. by which time I can join him and take line in balance of 39. C. x x If tills. ma-tts your approval, wire m» x x x. Tills suggestion will enable you to have your line out at_ race."

Meanwhile this letter from plaintiff himself creased a letter of VTsreh 9th, from defendant refusing the advance asked by plaintiff's brother and stating that if the orepositier "irii to plaintiff did not me*t hie approval he should return th* samples.

This letter was snswered by on* from plaintiffs brother, th* dated March 14th in which hi refers to that part of correspondence set up in the petition, declares that the full cerrtapondenc- ha. been submitted to plaintiff latjer "who inf« ms me that Mr, Vats-arson ran helo you to tn« contract made on a salary basis", and that plaintiff is on his way $*## horns, and is r.ad/ »nd waiting to start out "under th* above contract as soon as expense# money is received.

Upon receipt of this letter defendant broke- of. the correspondiko- and this suit followed.

New Orleans, La, February 1918.

As w* apjuMtcijkt*. fcjAfc cataeraapandanoa , whatever may hay* hasa plaintiff» right» at first, a*a* th* lass ha was aat diapased ta iaaiat upaa th**, H* was evidently unable *r unwilling ta start aut far plaintiff at aaea, but waa qruita willing t* taka up tha «aplayas n't later *ni «a a camaiaalaa batia, and if dafandant waatad asms *** at gads ha auggastad that hia brathar might taka hia placa.

It ahawa vary clearly that plá. atiff himaalf navar ti any tima canaidarad himaalf la th* amplay af dafandant, baund t* giva them hi* tja* ia return far a aalary which they «wad him, but am th* oamtrary fait himaalf fra* ta cantimu* hia athar amplaymant and diapaaa afhia awa tin* as his awa Interest* auggastad.

la sur «pialan th* caatract rallad up** navar waat iata affect.

Judgment Affirmed.  