
    Allentown Iron Co. v. McLaughlin.
    In an action of assumpsit against a master by a servant, to recover two months’ wages, the evidence was to the effect that the servant asked a certain sum a year and the master agreed to pay it, but nothing further was said as to the length of time of the service. The rule of the master was to pay every month. The servant began work in January and worked until Oct. 7, when he became disabled,, and was confined to his house for some two months. He testified that, during this time, he was consulted by the superintendent and the men about the running of the furnace, of which he was boss. The superintendent came the last time the middle of October and discharged him. The servant brought suit in December to recover wages under the contract for October and November. The court refused to charge that plaintiff could not recover for time after Oct. 7, but charged that he could recover what, according to the contract, his services were worth, but that his employer could deduct from that sum whatever damage he had sustained, if any, by reason of the inability of the servant to perforni his> services. A verdict and judgment were rendered for the plaintiff for the full amount of his claim. Held, on writ of error, that the judgment should be affirmed.
    In the above case, the plaintiff testified that, when he was discharged, the reason given by the superintendent of the furnace was that he was “ too high priced.” The court, after instructing the jury fully upon the right to discharge plaintiff by reason of his sickness and inability to perform his duties, further charged that he could not discharge plaintiff during the running of the contract because he was too high priced. The defendant complained that this was a virtual instruction to the jury that, although the sickness of the plaintiff afforded a good legal cause for his discharge, yet if, in point of fact, there was assigned some other reason, the discharge was illegal. Held that there was no error in the charge, taken as a whole.
    Feb. 7, 1889.
    Error, No. 86, July T. 1888, to C. P. Lebigb Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by Thomas McLaughlin against the Allentown Iron Co., at Jan. T. 1888, No. iO. "Williams and McCollum:, JJ., absent.
    The evidence was to the following effect, at the trial, before Albright, P. J.:
    The plaintiff was, in January, 1887, employed by the defendant as a furnace boss. He testified that he was “ to get $1300 and a free house,” and that he had been paid monthly until October. The defendant’s superintendent testified as to the circumstances of the employment as follows: “ I had authority to hire men, just as I wanted them. Q. Was he employed for any particular time ? A. We made a bargain, which was verbal, for a year, at $1300. Q. Did you agree on behalf of the company that you were to keep him a year? A. No, sir; not exactly. Q. All that was said is that his salary should be at the rate of $1300 a year? A. Tes, sir. Q. You did not agree to keep him for any particular time ? A. Nothing of that kind was said; not to my knowledge. . . . Q. Did you offer him $1300 a year ? A. No sir; he simply asked me $1300 a year and I agreed to give him that if he came. .' . . Our rule was to pay every month, but nothing was said about that.”
    McLaughlin was paid his wages for each month up to and including September, 1887. On Oct. 7,1887, he was injured at the furnace and laid up in his house until the middle of December. In October he was discharged from his position as furnace boss. He testified as follows, on this point:
    “Q. You were discharged? A. Yes, sir. Q. At what time? A. As nearly as I can recollect it might have been about the 15th or 18th of the same month — October; I think it was the second week after I met with an accident. Q. State what Earnshaw said to you at the time of your discharge ? A. Mr. Earnshaw came to me when in bed and unable to get out with a burned foot. Q. You had burned your foot in the service of the company? A. Yes, sir. Q. And you were confined to your bed? A. Yes, sir. Q. And while you were in bed, were you still managing? A. I still gave orders; if any one of the men came, what to do; I advised them what to do. Q. While there in bed, did Earnshaw come to see you? .A. He came there and asked me how I was getting along ; how my ■foot was, and I told him ; we would get to talking about the furnace, and he would tell me how the furnace was working, and I would ■give him an opinion on anything he would talk about to me. . Q. What did he say the last time he came 1 A. He came there and sat and talked awhile, and he said, ‘ Mr. McLaughlin, the company requested me to get along without you;’ he said, ‘-it is very unpleasant news to deliver to a man while in sick bed.’ ‘ What is .the trouble ?’ said I. ‘ The company considers you too high-priced,’ said he. ‘ I am very sorry that I have to do this business; I consider you a good man as far as I know, and the reports confirm it, •but I am compelled to do this by the President of the works.’ ”
    The'company refused to pay the plaintiff for October and November, and he brought this suit in Dec., 1887. The plaintiff’s statement was founded upon the contract for the year at $1,300. Plea, not guilty.
    The defendant presented the following point:
    “ Under the evidence, the verdict cannot be for the plaintiff for more than seven days worked in October, 1887. Ans. Refused.”
    The court charged as follows:
    “The plaintiff-was hurt while in the employ of the company, and I suppose in the line of his duties. So the question arises as to what the law is where one promises to do work for another, and becomes sick or is disabled and cannot work. How does that affect the contract of the parties ? If a man promises to work for a year or a month, and, without cause, quits the work before the time is up, then he can recover nothing, because he broke the contract. On the other hand, if the employer, without cause, discharges him before the time is up, the workman can recover for the whole period he was to serve, provided he was ready and willing to serve and did not go into other employment.
    [“In the case of sickness or disability, the law is.this: ‘Serious illness on the part of the servant, although a sufficient justification to enable the servant to recover- for the services actually rendered by him under the contract, nevertheless absolves the master from the contract so as not to be obliged to receive the servant back into his employ. It releases both from their mutual obligations; but, in such case, if the master has sustained any damage by reason of the servant’s failure to perform, he is entitled to deduct it from the wages earned, and if the damage is more than the value of the service, no recovery can be had. The rule, under such circumstances, is that the servant is entitled to recover the contract price, less the damages sustained by reason of- his failure to perform, and this is so, even although his inability results from an accident received while discharging his duties to his master. But, as the contract is not rescinded, no recovery can be had until, by the terms of the contract, the wages become due and payable. . . . Sickness for a lengthened time releases both parties from the contract. The master is not bound to wait an unreasonable time for.the ■restoration of his servant’s health.’ Wood’s Master and Servant, '§ 120.
    “You will observe that, where the servant becomes sick or is disabled from doing that which he promised to do, he is not to be regarded the same as if he had refused to perform the services.
    “ Mr. McLaughlin, having been incapacitated through this accident about the 7th of October, according to the uncontradicted evidence, is not in the position he would have been in, if he had then refused and left the employ of the company, and, without cause, had .said he would not work any longer. This affects the case so far that he can recover for whatever he did during the months of ■October and November, 1887. He can recover what, according to the contract, his services were worth, but his employer can deduct from that sum whatever damage he had, if any, by reason of the inability of Mr. McLaughlin to perform his services.] [2] [The law Is very plain, and cannot be disputed, that a man cannot get pay for ■that which he does not do, even although the misfortune of sickness prevents him from doing it. If a man promises to do certain work for you, and he is ever so willing to do it, but, owing to sick-ness, he cannot do it, it cannot be pretended that you must pay him ■for that which he did not do. You will plainly understand that. 'Taking this case — what did Mr. McLaughlin actually do in the months of October and November? He speaks of it as being about ■-seven weeks — whether it covers the whole of those months, I am not prepared to say. It is for you to say how long he was incapacitated. Then you will inquire how much the services were worth ■during that time. He has testified that, while he was sick, Mr. Earnshaw, the superintendent, came to him and consulted with him -about the running of the furnaces. If he rendered any services while he was in bed that would be of any value, he would be ►entitled to be paid for them. This, however, is to be looked at in a common sense way. If he was doing something which was of value, then he would be entitled to be paid for it, although he was laid up. Blit if it was simply talk and conversation, .such as men may have between each other, without the idea that there was -superintendence or services rendered, then the jury could not say he was then rendering services. You will give him whatever that which he did according to the contract was worth during those months, and you cannot award him pay for the time he could not ■serve, even although he had the misfortune to be hurt.] [3] [You must say the company is entitled to deduct from that which he ■earned during those months what damage they had by reason of his being incapacitated to perform the contract. Could they get somebody else to take his place ? and if they could or did, or if there was no particular loss sustained by reason of Mr. McLaughlin’s .absence, then there would be nothing to deduct. If there was such loss, •then you will deduct it.] [4]
    [“ There is some testimony that Mr. Earnshaw stated to Mr. McLaughlin, while Mr. McLaughlin was in bed, that he was discharged because he was too high priced. The company had no-right to discharge him for that reason. It seems that this was sometime in the month of October, 1887. .There was a bargain that he-was to serve the company for $1300 a year, to be paid monthly.. That would affect this case so far and no farther — if before the-month of October was up, or the seven weeks after the 7th of October, if that time came before the first of December,, and Mr. McLaughlin came back, and was well able to serve, and was not received, then the company could not have refused to receive him, because he was too high priced. I have already said to you that the-sickness and incapacity of Mr. McLaughlin excused the company from paying for that time or any other service. They had a right, to get somebody else when he could not serve them, and they were-relieved' for that, reason. That he was too high priced was no-adequate cause for discharging him.”] [5]
    Yerdict and judgment for plaintiff for $216.66.
    
      The assignments of error specified,!, the refusal of defendant’s-point, quoting it; and, 2-5, the portions of the charge included within brackets, quoting them.
    
      R. E. Wright, of R. E. Wrights Sons, for plaintiff in error.
    There is no evidence that we agreed to employ plaintiff for. a year or for any definite time. He can, therefore, only recover for .the-time during which he served. Wood’s Master and Servant, 157-8,. 186-7, 233-4,-238-40; Coffin v. Landis, 46 Pa. 426.
    There was no evidence from which the jury could, on the basis-of a quantum meruit, have found that, after Oct. 7, plaintiff earned some other sum than the contract price, for the performance of other services than those contracted for. The declaration was upon-the express contract. Even by the plaintiff’s own ’ testimony, Oct. 18 was the last time he spoke about the furnace work, and yet the-court submitted to the jury the value of his.services all through-Oct. and Nov.
    The court misapplied Wood’s Master and Seiwant, § 120. The rule is that the master’s damages are 'to be deducted from the wages-earned before incapacity, not from what might have been earned; after incapacity.
    In the concluding paragraph of the charge, the court virtually-said to the jury that, although the sickness of McLaughlin and his-incapacity to perform his contract afforded a good legal cause for his discharge, and gave the company the right to discharge him,, yet, in point of fact, if there was assigned some other reason, or if' the company was impelled by some other motive, the discharge was-illegal. Such is not the law. Wood’s Master and Servant, 225-6,. 228, 230-1, and cases collected in notes; Add. Cont. 433.
    
      Edward Harvey, with him Joseph Hunter, for defendant in error.
    If a master hires a servant, without mentioning the -time,, that is a general hiring, and, in point of law, a hiring for a year. Fawcett v. Cash, 5 English Common Laws B. & Ad. 903; Hattman v. Boulnois, 2 Car. & P. 510; Kirk v. Hartman, 63 Pa. 97; 2 Chit. Cont. 811; 2 English Common Laws Add. Cont. § 884.
    The suit was not based on a quantum meruit. We sued to-recover two monthly installments due the plaintiff under the contract, and the verdict was for the whole sum. As the defendant-offered no evidence of damages, this was right.
    If the point was answered properly, this court will not reverse because the verdict was too high. That could only be corrected by the court below granting a new trial.
    There is no evidence that the company elected to rescind, because of the temporary inability of the plaintiff to work. The evidence shows that late in October plaintiff did perform service. The cause of discharge was that plaintiff was “too high-priced.”' The right to rescind is a matter of election and the party must be notified in due time. 2 Chit. Cont. 911. While we have nothing to do with the motive of the company in discharging the plaintiff, the cause of the discharge was material.
    If any error was committed in the charge, it was an immaterial one and cannot be cause for disturbing the verdict.
    Feb. 18, 1889.
   Per Curiam,

If that portion of the charge of the learned court below, embraced in the fifth assignment, stood alone, it might be open to criticism. The contract of hiring was for one year, and it is true, as was stated by the court in the portion of the charge referred to, that the defendants below had no right to discharge the plaintiff during the running of the contract, because he was too high priced. But if, at the time, the defendant company had a right to discharge him for any cause, such discharge would not be unlawful because a wrong reason had been given for it. An examination of the charge of the learned judge shows that he had instructed the jury fully and correctly upon the right to discharge plaintiff by reason of his sickness and inability to perform his duties. Then followed the instruction that they could not discharge him because he was too high priced. Both rulings were correct, and sufficiently presented either view of the case. It was not, perhaps, a generous act to discharge an old employe of the company for a temporary incapacity to perform his duties, caused by an accident occurring in their service. We are not dealing with the sentiment of the case, which is often misleading, but with its law, and that requires this judgment to be affirmed.  