(7 Boyce, 479) AJAX RUBBER CO., Inc., v. GAM. (Superior Court of Delaware. New Castle. Nov. 17, 1919.) (Syllabus by the Court.) GUARANTY 39-NOTICE TO GUARANTOR OF DEMAND UPON AND DEFAULT BY PRINCIPAL DEBTOR NOT NECESSARY. mand upon and default by the principal debtor of the sum demanded is averred. The court is of the opinion that these averments are sufficient. The demurrer is sustained. (7 Boyce, 481) STATE v. PALESE. Castle. Nov. 14, 1919.) In an action by seller against defendant (Court of General Sessions of Delaware. New guarantor, on a continuing guaranty for payment of future credits, with notice of extensions of payment waived, notice of demand upon and default by the principal debtor of the sum demanded is sufficient. Action by the Ajax Rubber Company, Incorporated, against Emma S. Gam on a written guaranty. On demurrer to defendant's ninth plea. Demurrer sustained. CRIMINAL LAW 1024(9)—STATE HAS NO AP PEAL IN PROSECUTION FOR NONSUPPORT. In a prosecution for nonsupport of wife or child under Rev. Codes 1915, § 3035, providing an appeal shall lie on the part of accused, the of the court below, though under another secstate has no right of appeal from the decision tion, if changed circumstances warrant it, the Same case on demurrer to declaration, 7 state has a right to ask the court making order Boyce,, 105 Atl. 834. BOYCE and RICE, JJ., sitting. to open the case for change or modification. Appeal from Municipal Court of City of Herbert H. Ward, Jr., of Wilmington, for Wilmington. plaintiff. Andrew Palese was convicted of nonsup Harry Emmons, of Wilmington, for de- port, and the State appeals. Appeal dis fendant. The ninth plea demurred to is as follows: "Actio non: Because this defendant saith that notice was not given to her by said plaintiff within a reasonable time after the last sale of goods had been made by it to the said A. B. Rothacker Rubber Company, Incorporated, under said guaranty, of the total amount then due said plaintiff from said A. B. Rothacker Rubber Company, Incorporated, for the goods purchased by it from the said plaintiff, which said notice the said plaintiff was bound in law to give in order to hold this defendant responsible therefor under said guaranty. And this," etc. PER CURIAM. This is an action for the recovery of the price of goods sold by the plaintiff to A. B. Rothacker Rubber Company, Incorporated, under a written continuing guaranty of the defendant of prompt payment of all purchases theretofore made and that might thereafter be made by the principal debtor until receipt of notice by the plaintiff from the defendant guarantor that the guaranty was terminated. And notice of any extensions of payment was expressly waived. On demurrer to the declaration in this case, it was held that it is necessary to aver notice of the acceptance of the guaranty for future credits before there can be a recovery against the guarantor. 7 Boyce, 7 Boyce,, 105 Atl. 834. The declaration was subsequently amended accordingly. It is also averred therein, in substance, that the plaintiff did, on sundry dates, between the 1st day of April, A. D. 1917, and the 2d day of October, A. D. 1917, sell and deliver to A. B. Rothacker Rubber Company, Incorporated, on credit, certain goods, at reasonable prices agreed upon, amounting to the sum alleged, and also notice by the plaintiff to the defendant guarantor, on the 6th day of October, A. D. 1917, of de missed. RICE, J., sitting. Frank L. Speakman, Deputy Atty. Gen., and Henry R. Isaacs, of Wilmington, for the State. William H. Heald, of Wilmington, for accused. Information against Andrew Palese, conVicted of nonsupport by the municipal court. On appeal by the state. Appeal dismissed. The appeal coming on to be heard, counsel for accused moved for dismissal of the appeal on the ground that the state has no right of appeal. Mr. Speakman: Apparently, the law under which this appeal was taken does not give the state the right of appeal. RICE, J. Under section 3035, Rev. Code 1915, it is provided that "Proceedings under sections two to fourteen, inclusive, of this chapter, may be instituted upon complaint made under oath or affirmation by the wife or child or children, or by any other person, against any person guilty of either of the above named offenses. The Court of General Sessions and the municipal court for the city of Wilmington shall have original and concurrent jurisdiction in all cases arising under said sections, and, unless the accused shall demand a trial by jury, the trial shall in each case be by the court without a jury, subject to the right of the accused to appeal as provided by law in other cases: Provided, however, that the proceedings, under said sections, in the municipal court for the city of Wilmington shall be without indictment by grand jury or trial by petit jury." As the statute provides that an appeal shall lie on the part of the accused, and makes no provision relative to an appeal by (108 A.) the state, the court is of the opinion that plaintiff in error, as buyer and manager, unthe state does not have the right of appeal der the terms of a written contract under from the decision of the court below in cases seal, for the period from February 1, 1914, to brought under section 3035. Under another January 1, 1919, at a salary of $100 a week. section of the statute, "the court * The contract provided that the employment have the power to make an order, which might be terminated at any time by either shall be subject to change by the court from party to the contract giving to the other six time to time, as circumstances may require." months' notice in writing of such intention Section 3037. Therefore, if changed circum- to terminate, and after the expiration of the stances should warrant it the state has the six months' notice the agreement should terright to ask the court making the order to minate and be void. The contract provided open the case for a change or modification of that Brand should devote the whole of his the order. time, attention and energy to the performance of his duties under the contract during the time of the agreement. On February 27, 1918, the Ogden-Howard Company discharged Brand from its employ as buyer and manager without giving him prior notice in writing, and thereafter Brand performed no services for the company, although ready and willing to do so until April 1st following. The appeal is dismissed. (7 Boyce, 482) OGDEN-HOWARD CO. v. BRAND. DEBT FOR DAMAGES FROM WRONGFUL DIS- Brand brought the five suits now before this court on a writ of error, together with several other suits, before a justice of the peace against the Ogden-Howard Company for salary subsequent to the date of his discharge and prior to the expiration of the term of notice, each suit being for the sum of $100 salary claimed under the contract for the week mentioned in the particular suit. The judgments before the justice of the peace in favor of Brand were appealed to 41(1)—MEASURE the Superior Court, and by consent of both A corporation's buyer and manager, employed by contract under seal at a salary of $100 per week, terminable on six months' notice, and wrongfully discharged without notice, could not maintain actions of debt to recover weekly installments of salary for the six months' period for which his contract entitled him to notice; the damages being unliquidated, as capable of reduction by whatever might have been earned in other employments. 2. MASTER AND SERVANT OF DAMAGES FOR WRONGFUL DISCHARGE. The measure of damages to a wrongfully discharged employé is his stipulated salary for such period as he may be entitled to recover damages, less any amount actually earned, or which he might by due and reasonable diligence have earned during such period after discharge. Error to Superior Court, New Castle County. Actions of debt by John H. Brand against the Ogden-Howard Company. Judgments for plaintiff, and defendant brings error. Judg parties the five suits now in this court and two others were tried together. Judgments were entered in the Superior Court in favor of Brand for $100 each in the five suits. By a stipulation filed in the Supreme Court, counsel agreed that the record and briefs filed in the first of the cases on the docket of the Supreme Court should be considered as having been filed in the remaining four cases on the docket. In the Superior Court the plaintiff filed a pro narr. in debt. At the trial the defendant introduced evidence to show that Brand did not devote the whole of his time and energy to the performance of ments reversed. CURTIS, Ch., and BOYCE and RICE, JJ., his duties as buyer and manager, refused to sitting. obey the company's orders, and in other Charles F. Curley, of Wilmington, for ways neglected and failed to perform his plaintiff in error. Robert Pennington and Samuel H. Baynard, Jr., both of Wilmington, for defendant in error. duties. There are four assignments of error. We will consider only the first which is as fol lows: That the court erred in declining to give Actions of debt by John H. Brand against binding instructions to the jury to return a the Ogden-Howard Company, an incorpora- verdict for the defendant, on the grounds as tion, before a justice of the peace. Judg- prayed for by the defendant below, namely, ments for the plaintiff. Defendant brings that the only damages recoverable by a appeals to the Superior Court (Judges Conrad that the only damages recoverable by a wrongfully discharged employé for the unand Heisel sitting). Verdicts and judgments expired period of the contract, are unliquidatfor plaintiff. Defendant brings error. Judged, and not recoverable in an action of debt ments reversed. John H. Brand, the plaintiff below and defendant in error, was employed by the OgdenHoward Company, the defendant below and on contract under seal. RICE, J., after stating the facts as above, delivered the opinion of the court: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The question presented by the first assignment of error is whether under a contract of hiring, such as the one before us, an action of debt will lie, where an employé has been wrongfully dismissed during the term of employment, for the recovery of damages for wages after dismissal, nothing being due for wages actually earned. The plaintiff in error contends that the damages recoverable are not for a sum certain, or capable of being reduced to a certainty by calculation, and therefore an action of debt will not lie. The defendant in error claims that under the terms of the contract there were two distinct periods of time involved, to wit, the first six months after his discharge without notice as provided in the contract, during which time he was entitled to the sum of one hundred dollars per week, as liquidated damages, and second, the period between the expiration of said six months and the end of the term provided in the contract, during which time the damages were unliquidated. The defendant in error contends that the damages were liquidated and the action of debt was the proper action to bring in each of the five cases now before this court, for the reason that they were brought to recover weekly wages due within the period provided in the contract for notice of its termination, and in support of this contention cites Shea v. Kerr, 1 Pennewill, 530, 43 Atl. 843; Love v. Pusey & Jones Co., 3 Pennewill, 577, 52 Atl. 542. The principle of law for which the defendant in error contends is generally known as the "constructive service" doctrine and he claims that the doctrine has been recognized in this state in Shea v. Kerr. This doctrine has been recognized in some jurisdictions with approval but by the great weight of authority in this country it has not been approved. In the case of Shea v. Kerr, supra, the court stated the measure of damages to be "the amount the defendant agreed to pay her as salary for the two weeks," covering the period of notice in the agreement; yet in considering the Shea Case the fact must be taken into consideration that there was no evidence introduced at the trial to show that the plaintiff earned, or by reasonable diligence could have earned, anything during that time. In fact, there was no evidence introduced for the defense, therefore the charge of the court on the law was in conformity with the facts of the case, and we think that this case does not support the contention of the defendant in error. In the case of Love v. Pusey & Jones Co., supra, it was held that an action of debt may be maintained in this state against a stockholder in a Kansas corporation to enforce the individual liability of such stockholder under of the state of Kansas, to an amount equal to the par value of defendant's stock, on account of the unpaid balance of plaintiff's judgment obtained in Kansas against the corporation. We do not consider this case an authority in support of Brand's contention in the case now before us, as the cases are not analogous in any respect. Other cases in this state brought by an employé against an employer to recover damages for wrongful dismissal under a contract of hiring are: Spahn v. Willman, 1 Pennewill, 125, 39 Atl. 787; Hitchens v. School District, 5 Pennewill, 325, 62 Atl. 897; Carroll v. Cohen and Finklestein, 5 Boyce, 235, 91 Atl. 1001. In the case of Spahn v. Willman the defendant at the trial offered evidence to show that the plaintiff had refused work of a similar character offered by a third person during the term of the alleged contract after plaintiff's dismissal. Objection was made to the testimony on the ground that plaintiff if he had been wrongfully discharged during the term of the contract was not obliged to look for other work but could wait until the end of the period covered by the contract and then sue for his wages. The court overruled the objection and admitted the evidence stating that such evidence went to the measure of damages. In the charge to the jury the court stated the measure of damages to be such amount as the plaintiff would have been entitled to under the terms of the contract less any amount he may have earned in the time which he would have given to his work, if he had continued in the defendant's employ. In Hitchens v. School District the defense was that the employé had broken the contract and the employer therefore was justified in dismissing the plaintiff. There was, no evidence introduced at the trial to show that the plaintiff earned or reasonably might have earned anything during the term of the contract. The court stated the measure of damages to be what the plaintiff would have earned under the contract, and said nothing relative to what he might have earned elsewhere as there was no evidence on this point. In the case of Carroll v. Cohen and Finklestein the court stated the plaintiff's measure of damages to be "the amount of his wages, as contracted for, for the unexpired portion of the term of employment, less the amount he has earned or might, by reasonable effort, have earned in other employment during such unexpired term." It does not appear in the report of the case that the employé earned anything elsewhere yet from the language employed by the court in stating the measure of damages it is reasonable to assume that such evidence was introduced at the trial. (108 A.) whatever difference there appears to be as binding instructions to the jury to return a to the measure of damages in the Delaware cases is due to the nature of the evidence introduced, or to the lack of evidence at the trial. verdict for the defendant, on the ground that the damages recoverable by a wrongfully discharged employé for the unexpired period of the contract, are unliquidated, and not recoverable in an action of debt. Finding error in the proceedings below, as specified by the first assignment of error, the court directs that the judgments below be reversed and the cases remanded to the court below for further proceedings. GALLIAO v. STATE. (7 Boyce, 488) [1, 2] The contract now before the court is one of hiring, under seal, under the terms of which the plaintiff was employed and entered the service of the defendant company as buyer and manager of their business. The employment was for a definite period, from the 14th day of February, 1914, to the 1st day of January, 1919, with the right reserved by either party to terminate the agreement upon six months written notice. There was but one contract between the parties, and the discharge of Brand was a single act constitut-(Court of General Sessions of Delaware. New Castle. Nov. 13, 1919.) ing but one breach, and damages for such a breach can be recovered in but one action. That the right was reserved to either party to terminate the contract upon notice would not be a sufficient reason for holding that there was a dismissal at the beginning of the period of notice and another dismissal at the end of that period, thereby constituting two distinct and separate breaches of the con tract. In the few states which recognize the "constructive service" doctrine, an employé who has been wrongfully discharged under a contract of employment for a definite term and who is ready to perform his part of the contract, may possibly recover in damages the exact amount of his wages as stipulated in the agreement, for such time as he holds himself ready and willing to perform his duties under the contract. In these states an action of debt may be the proper action in such cases, because the damages would be for a sum certain. From our observation with respect to the Delaware cases it will be seen that the "constructive service" doctrine has never been recognized in this state, neither is it approved by the overwhelming weight of authority in this country. In this state and the other jurisdictions where the constructive service doctrine is not recognized, the discharged employé can recover damages only for the breach of the contract, and the measure of damages is uniformily held to be the stipulated salary for such period as he may be entitled to recover damages, less any amount he actually earned or might, by due and reasonable diligence, have earned during such period after discharge. The measure of damages in this state, being as stated, the conclusion must be reached that the damages recoverable in such an action are not for a sum certain, or capable of being reduced to a certainty by calculation, such as would admit of the action of debt as a proper or maintainable one. We are therefore of the opinion that the court below was in error in declining to give CRIMINAL LAW 576(1)-DISCHARGE ON DE LAY BY STATE ON APPEAL. Defendant, appealing, on conviction in the municipal court, to the Court of General Sessions, as entitled to under Const. art. 4, § 30, in view of the severity of sentence, but being still in custody because of inability to give a custody under such sentence, on the state besupersedeas bond, is entitled to discharge from ing unable to proceed at the second term after the appeal, though the state, while not entitled to further continuance, may have the case retired for the present, but defendant will not be discharged from any other sentence which he is serving. Peter Galliao was informed against in the municipal court for the city of Wilmington, on a charge of assault and battery, and adtions for second continuance and to dismiss judged guilty, and he brings appeal. On moappeal. Defendant discharged from custody. BOYCE and RICE, JJ., sitting. David J. Reinhardt, Atty. Gen., for the State. Philip L. Garrett, of Wilmington, for defendant. Peter Galliao was adjudged guilty of assault and battery in the municipal court for the city of Wilmington on August 5, 1919, and was sentenced to imprisonment for three months and to pay a fine of $100. He, being unable to give a supersedeas bond, was committed, but subsequently took an appeal to the Court of General Sessions. Information on the appeal was filed at the September term following, and, because of the absence of the prosecuting witness, the case was continued to this, the November term, and the prosecuting witness still being absent and out of the jurisdiction, the state moved for a further continuance of the case. Counsel for the convict moved to dismiss the appeal for failure to prosecute after the second term, which motion was opposed by the state. PER CURIAM. Article 4, § 30, of the Constitution of 1897 provides that there shall For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the property stolen belonged to the persons as laid in the indictment; that Boyce and his brother had no property in the corn until it was divided, which had not been done at the time of the theft-citing Ellison v. Dolbey & Stanert, 3 Pennewill, 55, 49 Atl. 178. be an appeal to the Court of General Sessions in all cases in which the sentence shall be imprisonment exceeding one month, or a fine exceeding $100. Under this provision, the convict, though now in custody under sentence of the municipal court and unable to give a supersedeas bond, is entitled to an appeal to this court. The inability of the Mr. Green: Rev. Code 1915, § 4830, providstate to try the case at this, the second term es that ownership may be held in property since the appeal was taken, because of the belonging to more than one person, whether absence of the prosecuting witness, does not such persons be partners in trade, joint tenwarrant a further continuance of the case. ants, or tenants in common, and it shall be The convict is at this term entitled to have sufficient to name one person only, and the the appeal proceeded with or to be discharg- property may be described as belonging to ed from custody. pending the appeal. The the person so named and others-citing alstate may have the case retired for the pres- so Wharton on Criminal Procedure, vol. 2, The convict will be discharged under § 869; State v. Frame, 4 Har. 569. the sentence imposed by the municipal court in this case, but not from any other sentence for which he may be in custody. (7 Boyce, 490) STATE v. TAYLOR. 1 RICE, J. The corn alleged to have been stolen is in the indictment alleged to be the "property of William Truxton Boyce and others" and I am of the opinion that Boyce had such a property in this corn as will support this indictment on the charge of larceny of the property. I think there is a joint property in the corn under the testimony in P. Warren Green, Deputy Atty. Gen., for Creek hundred, this county, on the 30th day of the State. October in the present year, the property al L. Irving Handy, of Wilmington, for ac-leged in the indictment to have been the cused. property of William Truxton Boyce and others. Walter Taylor was indicted for larceny. The jury disagreed. Property in the indictment was laid in "William Truxton Boyce and others." Evidence was introduced by the state to show that B. and his brother were owners of a farm in the tenure of R. and his brother as tenants on shares; that R. and his brother had husked their corn, leaving it in the field overnight, when it was stolen by the accused. It was not shown that the corn had been divided between the owners of the farm and their tenants at the time it was stolen. When the state rested, Mr. Handy, counsel for defendant, moved for binding instructions to the jury to find the defendant not guilty, on the ground that it had not been shown * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |