Opinion
6 Div. 255.
March 7, 1933. Rehearing Denied April 4, 1933.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Action for breach of contract by M. M. Summers against the Great Atlantic Pacific Tea Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Great Atlantic Pacific Tea Co. v. Summers, 226 Ala. 635, 148 So. 333.
Count A of the complaint is as follows: "Plaintiff claims of the defendant the sum of One Hundred Dollars as damages for breach of an oral contract of employment made during to-wit, 1928, whereby defendant employed plaintiff to work in one of defendant's stores in Birmingham at a salary, or wage of to-wit, $35.00 per week, and plaintiff avers that he entered upon the performance of said contract and at all times was ready, willing and able to perform said contract, and plaintiff avers that defendant breached said contract in January, 1931, by discharging plaintiff, and as a proximate result of defendant's breach of said contract plaintiff was damaged by losing his pay and compensation, and he was chagrined, embarrassed, caused to be without work, his reputation was injured, all to his damages as aforesaid, hence this suit."
Drennen Perrine, of Birmingham, for appellant.
The complaint should set out fully the covenants of the parties and assign the breach alleged. Buford v. Graden, 5 Ala. App. 421, 59 So. 368, 370; 3 C. J. 51, 192. When no time is fixed in a contract of employment, it is presumed that the contract is a hiring at will. 39 C. J. 44. An oral contract of employment which shows on its face that it is not to be performed within one year is void under the statute of frauds, and, when this appears from the pleading, a demurrer properly presents the defense. Conoly v. Harrell, 182 Ala. 243, 62 So. 511; Thompson v. New So. Coal Co., 135 Ala. 630, 34 So. 31, 32, 62 L.R.A. 551, 93 Am. St. Rep. 49; White v. Levy, 93 Ala. 484, 9 So. 164, 165; Tyler v. Jewett, 82 Ala. 93, 2 So. 905; Clanton v. Scruggs, 95 Ala. 279, 10 So. 757, 758.
Frederick V. Wells, of Birmingham, for appellee.
A master may at any time put an end to a contract of employment, but, if not for sufficient legal cause, the servant is entitled to damages for the breach. St. L. S. F. R. Co. v. Hunt, 6 Ala. App. 434, 60 So. 530. The court will not reverse a judgment for error as to any matter of pleading or procedure unless, in the opinion of the court, it should affirmatively appear after an examination of the entire cause that the error complained of injuriously affected substantial rights of the parties. Supreme Court Rule 45, 4 Code 2923, p. 890; Navco H. Co. v. Bass, 214 Ala. 553, 108 So. 452; Yates v. Dobson, 213 Ala. 547, 105 So. 691; Harrell v. Hooks, 16 Ala. App. 571, 80 So. 145; Miller v. Mut. Gro. Co., 214 Ala. 62, 106 So. 396; L. N. v. Bouchard, 190 Ala. 157, 67 So. 265; Capital Sec. Co. v. Owen, 196 Ala. 385, 72 So. 8; Broughton v. Broughton, 17 Ala. App. 255, 84 So. 635; Carnley v. Moore, 214 Ala. 114, 106 So. 604; Johnston v. Citizens' Bank, 145 Ala. 654, 39 So. 577; Best Park Am. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929.
It is urged by counsel for appellee that the smallness of the amount involved in this case should in a large measure influence this court to a conclusion that errors committed by the trial court should be overlooked and the judgment be affirmed under Supreme Court Rule 45. We cannot agree to that contention. Parties litigant are entitled to have their causes tried in nisi prius courts free from substantial error and when error is made to appear by the record this court must declare the law as it finds it regardless of the amount involved.
The appeal in this case is on the record and the record discloses the complaint in three counts. Counts 1 and 2 were the common counts and each claimed $25. Count A is a special count and claims damages of $100 for breach of a contract of hire. The judgment was for $30 and therefore is referable alone to count A. Demurrer to count A was overruled and this ruling of the court is assigned as error.
The contract declared on was for no specific time and was determinable by either party at will, at the end of any week. Clark v. Ryan, 95 Ala. 406, 11 So. 22; 39 Corpus Juris 44 (18)b.
The allegation of a breach of the contract sued on, as alleged in count A, is a mere conclusion. For aught that appears the discharge of plaintiff by defendant came at the end of a week, at which time defendant had a right to terminate the contract or plaintiff may have been discharged at the will of defendant. A complaint for breach of contract must set forth the essential facts of the breach with such certainty as will apprise defendant in what particulars he has failed to perform. Woodward Iron Co. v. Frazier, 190 Ala. 305, 67 So. 430; Fike v. Stratton, 174 Ala. 541, 56 So. 929.
The demurrer should have been sustained. The judgment is reversed and the cause is remanded.
Reversed and remanded.