
    EUGENE HOWARD, Respondent, v. VAUGHAN-MONNIG SHOE COMPANY, Appellant.
    Kansas City Court of Appeals,
    January 8, 1900.
    1. Master and Servant: CONTRACT: DISCHARGE: EVIDENCE. The evidence is reviewed and found to show a contract for a year with a privilege of discharging a servant on two weeks’ notice, and discharge without such notice was unlawful and entitled the servant to recover for the balance of the year.
    2. -: DISCHARGE: ISSUE: INSTRUCTIONS. -On the evidence and instructions it is held that the theory of the plaintiff was that he was entitled to two weeks’ notice and that of the defendant that plaintiff was subject to discharge without such notice.
    3. -: -: EVIDENCE OE EMPLOYMENT: MITIGATION. One employed for a definite period and wrongfully discharged prior to its expiration should accept similar service and his earnings will mitigate the damages, but the servant is not compelled to accept an offer from his,, former master in such way as would operate an abandonment of his rights under a former contract; and evidence on such offer and refusal to accept, is properly refused.
    
      4. -: EVIDENCE: HEARSAY. Though a fact within the knowledge of a Witness may in itself be material, it will not authorize the introduction of a mass of hearsay intermingled with it in the same answsr and the whole should be ruled out together.
    5. Practice, Trial: REMARK OE COURT: EXCEPTION. Where no objection or exception is taken at the time to the remark of the court in striking out certain inadmissible evidence, harm can not b.e said to result from such remark.
    Appeal from the Cole Circuit Court. — Hon. B. W. Shackleford, Judge.
    Affirmed.
    
      F. M. Brown and Fdwin Silver for appellant.
    (1) The court erred in refusing to permit defendant (on plaintiff’s cross examination as a witness) to show, that shortly after his dismissal from defendant’s service it offered to take him back for the additional two weeks claimed by him. This was competent in mitigation of damages. Bigelow v. Powder, 39 Hun. 599; Mitchell v. Tóale, 27 S. 0. 238. (2) The court further erred in striking out at plaintiff’s request, the testimony of the witness, Monnig, that he saw plaintiff and one Walsh in a fist fight within the penitentiary, and just outside of defendant’s office. Pope v. Lathrop, 46 N. E. Rep. (Ind.) 154. (3) An instruction is erroneous which puts to the jury hypothetically facts of which there is no evidence. McAfee v. Valandingham, 75 Mo. App. 45;Stokes v. Distillery Co., 64 Mo. App. 42Ó; Benjamin v. Railway, 50 Mo. App. 602; Cottrell v. Spiess, 23 Mo. App. 35; Craighead v. Wells, 21 Mo. 404; State ex rel. v. Hope, 102 Mo. 410; Gorham v. Railway, 113 Mo. 409; Stone v. Hunt, 114 Mo. 66. (4) Where two or more instructions are inconsistent, ithe judgment will be reversed. Legg v. Johnson, 23 Mo. App. 590; Stone v. Hunt, 94 Mo. 475. (5) So -an instruction intrinsically inconsistent is erroneous. Wood v. Steamboat, 19 Mo. 529; Seymour v. Seymour, 67 Mo. 303. (6) So instructions are erroneous if not set forth in plain and unambiguous language. Young v. Ridenbaugh, 67 Mo. 574; State v. Pettit, 119 Mo. 410; Legg v. Johnson, 23 Mo. App. 590.
    
      Edwards & Edwards for respondent filed an extended argument.
   ELLISON, J.

This action is for breach of contract of ■hiring. Plaintiff recovered in the trial court.

Since the verdict was for plaintiff, we will assume the facts to be as the evidence in his behalf tends to prove them. Defendant is engaged in the manufacturing of shoes in the state penitentiary at Jefferson City and has in its employ a number of convicts as well as some others who are not convicts. Plaintiff was of the latter class and was engaged by defendant to work for it as a “treer” for a short period on trial, to ascertain if his work was satisfactory; and if it was, he was to continue in defendant’s service for one year at a salary of $15 per week with the privilege of discharging him, by giving two weeks notice, if the performance of his services should prove unsatisfactory. The probationary service began in the ' first part of April and being satisfactory to defendant, after a test of two or three weeks, the engagement was made final under the terms just stated. Plaintiff worked until November 20, following when defendant without stating any cause and without giving any notice discharged him against his protest, he claiming he had not received notice as agreed upon. Several days after his discharge defendant offered to let him return to work for a period of two weeks and he rejected the offer. He recovered judgment for the period between November 20 until the end of the year at the rate of $15 per week, less $25 he earned in the meantime at other employment.

Defendant’s answer admitted the employment but denied it was for a year or that plaintiff should have had two weeks notice before discharge, or that his work was satisfactory to defendant, and alleged that the employment was by the week and claimed the right to discharge plaintiff .at the time it did. The answer did not allege .any cause for plaintiff’s discharge.

Plaintiff 'asked one general instruction, which was given, and defendant asked ¡three, which were ¡also given. The instruction for plaintiff is objected to but we find that it fairly covers plaintiff’s case as made out by the evidence in his behalf and hence approve it. The objections made to it will be embraced in what follows as to the evidence generally.

Defendant says that the evidence does not tend to show that plaintiff was first to work on trial and then, if satisfactory, to be engaged for one year*. And that the instruction contained two opposite theories, viz.: That plaintiff was hired for a year -and that he had been discharged without giving him two weeks notice. The objection is not sound in the view we take of the contract as made out by plaintiff’s testimony. That testimony is awkardly given, but we can not disregard it for that reason, if it shows under fair and reasonable interpretation what is meant. Without giving the language, our interpretation of the contract is that it was for a year’s employment, if plaintiff’s work continued to be satisfactory, 'at the rate of $15 per week, with the privilege of discharge, if the work was unsatisfactory, by giving two weeks notice; but the engagement was not to be binding until plaintiff had served a short time in order- that defendant might ascertain if he was the sort of man it wanted.. We think the record shows that defendant’s counsel and officers, so understood it. Defendant’s superintendent, who hired plaintiff, says he told plaintiff that he would not think of hiring him “without giving him a trial.” He answered the following questions asked by defendants counsel: ' “Q. You heard Mr. Howard’s testimony here that you were to hire him for a year; that you were to give 'him two weeks’ notice in ease of discharge ? Did you so hire him ? A. I did not. Q. On what terms did you hire him? A. I hired him simply at $15 a week to come to work there. And if Ms work was satisfactory naturally be would bold bis job. Q. "What was your custom in regard to biring? A. I hired men just by the week.”

Tbis discloses that it was understood at tbe trial that one side was showing a year’s hiring, witb privilegé of discharge on two weeks’ notice, and the other, that it was merely a hiring by tbe week. So an instruction was given at defendant’s instance which submitted the hypothesis of defendant’s agreeing to give two weeks’ notice.

It is urged by defendant that since plaintiff, at tbe time, put bis objection to being discharged solely on tbe ground of not having received the two weeks’ notice, be can not after-wards change front and put bis case on any other theory. If we concede defendant’s authorities in support of -this proposition are applicable to tbis case in a proper state of evidence, we think tbe evidence as preserved will not justify their application. Plaintiff testified that defendant’s superintendent banded him bis pay envelope with 'the statement that tbey would “have to part company;” that plaintiff replied: “that is hardly the agreement. And be says, ‘how is that?’ I says, ‘when yon hired me yon agreed yon would give me tiwo weeks’ notice.’ He says:‘I don’t remember it.’ I says,‘I do remember if distinctly.’ He says: ‘I’ll give yon another week’s pay.’ I says, ‘no, sir, don’t my work suit you?’ He says: ‘I’ll give you a good recommendation.’ I says, ‘I want my two weeks’ pay, or two 'weeks’ notice.’ And be says: ‘get what things belong to you;’ and I walked out.” Here defendant assigned no cause for tbe discharge and plaintiff realizing that under tbe contract be bad not the right in -any event to discharge without tbe two weeks’ notice reminds him of that fact, and asks him if bis work is not satisfactory, and then receiving tbe evasive answer from the superintendent be claims bis right to the notice agreed upon. Certainly there was nothing in tbis to show that plaintiff abandoned or waived tbe remainder of bis contract. According to tbis testimony of plaintiff, which we accept as true, the superintendent did not treat Mm candidly. He did not tell Mm the cause of his discharge and was evidently asserting an absolute right of discharge, a right claimed by him at the trial.

But besides the foregoing, defendant, by raising the point now, is endeavoring to shift the ground here from that taken at the trial. All of its instructions were given, and no such hypothesis was submitted. They are as follows:

“1. The court instructs the jury that -if the defendant employed plaintiff simply by the week and without agreement to give him two weeks’ notice in case of dispensing with his services, and on so dispensing with said services paid plaintiff all that was owing him up to that time, then plaintiff can not recover in this action.
“2. The burden of proof is on the plaintiff to establish by the greater weight of the evidence to the satisfaction of the jury the alleged agreement or contract with defendant relied on by plaintiff as grounds for recovery in this action.
“3. The court further instructs the jury that if plaintiff disobeyed reasonable and proper orders relating to his work or 'conduct as defendant’s employee, and was discharged because of such disobedience, then plaintiff can not recover in this action.” .

As has been before stated, a few days after plaintiff was discharged defendant offered to allow plaintiff to return to work for two weeks, and to pay him for that time' if he would so return, hut not otherwise.. Evidence of this was ruled out by the trial court. Defendant claims it should have been heard in mitigation of the damages. We think the ruling was proper. Ordinarily, one hired for a definite time and wrongfully discharged prior to that time, should accept an offer to do similar work and his earnings will mitigate the damage. But where the offer o-f opportunity to so work is made by the wrongdoer in such way, or under such circumstances that its acceptance would force an abandonment of his rights under his contract of employment, he is under no obligation to accept. If plaintiff had accepted this offer at that time and under those circumstances, it would have been an abandonment of his right to a year’s employment if his work was satisfactory. It would have amounted to a compromise of the matter by mutual concessions — .defendant conceding that he should have two weeks’ notice and plaintiff conceding that he could he rightfully discharged on such notice, notwithstanding he performed his work satisfactorily.

While defendant’s statement of the contract was that the hiring was hy the week, with a right of discharge at any time, it claimed that plaintiff justified the discharge hy a disobedience of orders in holding communication with another department of the work, and finally engaging in a “fist fight” with the foreman. Plaintiff explained what communication he had, and why he had it, and the matter was submitted to the jury by defendant’s third instruction above set out. But at one part of the examination of the defendant manager, in answer to the question whether he knew the- cause of the discharge, the answer was of some length and consisted chiefly in hearsay. Indeed, the whole answer was hearsay, except a sentence in which he stated that he saw the fight. The answer was stricken out. Conceding the relevancy of the fact of plaintiff’s engaging in a fight- .as showing such disorderly conduct as to justify his discharge, it is sufficient to say that the witness, who was defendant’s general manager, had no right to mingle the statement in with a lot of other clearly irrelevant and hearsay matter. But he this as it may, the whole subject was after-wards admitted in evidence disentangled from hearsay and was fully put before the jury. After ruling on the verbal motion to strike out the answer, ’and after defendant’s exception, the court remarked that it was “.collateral matter.” No objection or exception was taken to the remark, and in view of the fact that it got to the jury we can not see where any possible -harm could result from the remark. It not -only was put before the jury but under a direct ruling by the court on plaintiffs motion that it be stricken out.

We have gone carefully over the record, perhaps considering some matters of objection not justified by the answer, and finding no error materially -affecting the merits of the case we -affirm the judgment.

All concur.  