
    LEVY v. JARRETT.
    (No. 1214.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1917.
    Rehearing Denied Nov. 7, 1917.)
    1. Trial €=>205-AtNSTRUCTioNS — Necessity— Burden of Proof.
    Trial court, in submission .of special issues, should give -proper charge on the burden of proof in connection therewith.
    2. Ajbpeal ’and Error €==>1067— Harmless Error — Errors not Affecting- Result.
    Refusal to give proper charge on burden of proof is harmless error, where it does not appear that result would probably have been different if charge had been given.
    3. Master and Servant <§=»73(3) — Compensation — Forfeiture.
    Preparing, before end of term for which servant wa§ employed, to engage in competitive business at expiration of term, and attempting to engage one.pf employer’s, clerks for his business when opened, are not Such unlawful acts as to forfeit his right to compensation for past services.
    4. Master and Servant €=>30(1) — Grounds for Discharge.
    That an employe intends, at. expiration of his term of employment, '.to engage in competing business is not ground of discharge.
    5. Master and Servant €=>41(1) — Actions for Compensation — Amount of Recovery.
    . ■ An employé, wrongfully discharged, may sue on contract.for services performed and recover proportional compensation.
    
      6. Master and Servant @=>75.— Compensation— Mutual Abandonment.
    If a contract of employment is mutually abandoned, the employé is entitled to recover proportional compensation for his services.
    7. Master and Servant @=>32 — Grounds rob Discharge.
    When an employer assigns grounds for discharge of employé, he cannot afterwards justify it on other grounds which were not at the time made the basis of termination of contract.
    8. Master and Servant <®=>73 (3) — Compensation— Damages for Misconduct.
    In a discharged employé’s action to recover compensation for past services, the employer may set off damages for actual misconduct by employé; though he did not base discharge on those grounds.
    Appeal from Potter County Court;. T. W. McBride, Judge.
    Action, by M. J. Jarrett against J. Devy. From judgment for plaintiff, defendant appeals.
    Affirmled.
    C. E. Gustavus, of Amarillo, for appellant. Reeder & Dooley, of Amarillo, for appellee.
   BOYCE, J.

In this case appellee, Jarrett, recovered judgment against appellant, Devy, as compensation alleged to be due for services under a contract of employment, as manager of a department of appellant’s store at Amarillo. The contract of employment provided that appellee, for his services, was to receive a salary of $150 per month, and in addition a commission of 2 per cent, on the gross sales of the department of which he was manager. The only dispute between the parties with reference to the contract was as to the tirnie it was to cover — appellee claiming that it was for six months and appellant that it was for one year. According to the testimony of both parties, the commission was to be paid at the end of the term of employment. It was shown that some time in April, 1916, appellee rented a building in Amarillo and was preparing to quit the service of appellant on July 1st, the date of the expiration of the six months for which he claimed, he was employed, and at that time engage in a business competitive with his employer. Appellee did not inform appellant of his plans, but appellant, having learned of theml from other sources, inquired of ap-pellee with reference thereto and, being informed by appellee that such was his intention, requested appellee to quit the service on June 1st, and appellee did so. The controversy is as to the right of appellee to recover the 2 per cent, commission on the gross sales of his department during the time of his employment.

Appellant asserts that the contract being for one year was breached by appellee’s declared intention to terminate it at the end of six months. The jury found, in response to two special issues submitted, that the contract was for six months and the converse that it was not for one year, and appellant presents an assignment complaining of the action of the court in refusing to submit a requested instruction as to the burden of proof in connection with the submission of the first issue stated.

It is ordinarily true that the trial court in the submission of special issues, should give a proper charge on the burden of proof in connection therewith. Texas Baptist University v. Patton, 145 S. W. 1063; Sanger v. Bank, 170 S. W. 1087.

The solution of the sole issue between the parties as to the terms of the contract depended upon the weight the jury should give to the testimony of the plaintiff and the defendant, respectively, they being the only witnesses to the terms of the contract, which was oral. The court gave the usual charge to the effect that the jury were the sole judges of the credibility of the witnesses, and the weight to be given to their testimony, etc. Under these circumstances it is doubtful whether a charge on the burden of proof, in connection with the submission of the issue, was necessary. T. & P. Ry. Co. v. Geiger, 79 Tex. 13, 15 S. W. 216; Blum v. Strong, 71 Tex. 324, 6 S. W. 167; Frost v. Grimmer, 142 S. W. 615; Stooksberry v. Swan, 85 Tex. 563, 22 S. W. 963; Syfan v. Ry., 43 S. W. 553. At any rate, we do not think it appears that the result would probably have been different if the charge had been given, so that, if the action of the court was error, it was harmless.

Appellant pleaded that appellee, during his employment, was unfaithful and disloyal to the interests of his employer; that he was guilty of disobedience of instructions, and failed to discharge properly the duties of his employment, and thereby breached the contract and forfeited any right to the commission which was to be paid at the end of the term of his services. Some evidence was offered as to some specific instance of disobedience to general instructions, as to adhering to marked prices, reporting sales, etc., and evidence was offered but rejected as to some specific instances of exhibition of irritability on the part of the appellee in dealing with customers of the store. Appellant, by various assignments, complains of the action of the court in refusing to permit the introduction of the'evidence referred to as being offered and in refusing to submit issues to the jury as to the faithfulness of appellee’s service, the only issues submitted being the two issues as to the stipulation of the contract fixing the term of the employment, as before stated.

The charge of disloyalty against appel-lee is based on the fact of his renting a building and preparing to engage in a competitive business at the expiration of his term of service, and also an alleged effort on his part, while in his employer’s service, to engage one of such employer’s clerks for ap-pellee’s business when opened. The only authorities to which we have been cited as bearing on this question hold, we think correctly, that such acts alone on the part of the employé are not wrongful. Myers v. Sullivan Co., 166 Mich. 193, 131 N. W. 521, 34 L. R. A. (N. S.) 1217; Nichol v. Martyn, 2 Esp. 732. It is not every act of disregard of and inattention to the duties of the employment that will forfeit the servant’s right to compensation, though he may be discharged by reason thereof. Cotton v. Rand, 93 Tex. 7, 51 S. W. 843, 53 S. W. 343; Hahl v. Kellogg, 42 Tex. Civ. App. 636, 94 S. W. 391; Eidson v. Saxon, 30 S. W. 957; Mechem on Agency (2d Ed.) § 1548. The following rule stated by Mechem is generally adopted by the authorities as correctly stating the law:

“If the agent was guilty of such misconduct as amounts to treachery, or if he wholly failed to recognize the duties and responsibilities imposed upon him by his situation or so conduct himself that his services are of no value, it is entirely just and reasonable that he should receive no compensation whatever and to this extent the law is well settled.”

We think it clear that the acts charged against appellee do not come within this rule.

The appellee was requested to quit appellant’s service because of his expressed intention to enter into business for himself on July 1st, prior to the expiration of his term of service, as appellant claimed. If the transaction is to be treated as a discharge, under the finding of the jury and the authorities above cited, this discharge was wrongful, and all the authorities agree that in such event appellee could sue on the contract for the servides performed and recover a proportional compensation. If the transaction be treated as a mutual abandonment of the contract, appellee would be entitled to recover proportional compensation for his services. Labatt on Master & Servant, §§ 467-468. If the acts of misconduct other than his planning to enter into business for himself upon the expiration of his term of employment, now charged against appellee, would have justified his discharge, they were not made the basis of the termination of the contract and would not affect appellee’s right to recover on it, as appellant at the time did not treat such acts as being a breach of the contract, but, on the contrary, insisted that he was entitled to appellee’s services until the end of the year, and terminated the contract because of his expressed intention to quit the service earlier than such time. Dunkell v. Simons (N. Y. City Ct.) 5 N. Y. Supp. 417; Wright v. Graves Land Co., 100 Wis. 269, 75 N. W. 1000; Mechem on Agency (2d Ed.) § 1581. Under these circumstances we think appel-lee could recover on the contract, and the showing of these acts of misconduct would not defeat recovery entirely, though appellant may have pleaded them and asked for damages in offset of appellee’s claim. This he did not do. For this reason we think the issues as to these alleged acts of misconduct in the service are immaterial, and overrule appellant’s assignments in reference thereto.

Even if appellee had been rightfully discharged for these other alleged acts of misconduct, numerous authorities hold that he could nevertheless maintain his suit for compensation, and could recover the proportional part of the compensation earned under the contract subject to the right of the employer to offset this recovery, with the damages sustained by him on account of the wrongful acts of the servant in disregard of his duty. Hildebrand v. Art Co., 109 Wis. 171, 85 N. W. 268, 53 L. R. A., 826; Maratta v. Chas. H. Heer Dry Goods Co., 190 Mo. App. 420, 177 S. W. 718; Myers v. Sullivan Co., 166 Mich, 193, 131 N. W. 521, 34 L. R. A. (N. S.) 1217. It is not so clear to us, however, whether in Texas the recovery would not be on a quantum meruit, and just how far the contract might be used by the plaintiff in such circumstances as a basis for the suit and determination of the value of the services. Carroll v. Welch, 26 Tex. 147; Meade v. Rutledge, 11 Tex. 44-52; Shute & Limont v. McVitie, 72 S. W. 433; Peacock v. Coltrane, 44 Tex. Civ. App. 530, 99 S. W. 107; Cotton v. Rand, 93 Tex. 7, 51 S. W. 843, 53 S. W. 343; Basse v. Allen, 43 Tex. 481; Mudgett v. Texas Tobacco Manf. Co., 61 S. W. 150, and for this reason base our ruling on the conclusions announced above.

Affirmed. 
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