{
  "id": 1388567,
  "name": "Gerard B. Lambert Company v. Rogers",
  "name_abbreviation": "Gerard B. Lambert Co. v. Rogers",
  "decision_date": "1923-12-03",
  "docket_number": "",
  "first_page": "307",
  "last_page": "310",
  "citations": [
    {
      "type": "official",
      "cite": "161 Ark. 307"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "59 N. E. 524",
      "category": "reporters:state_regional",
      "reporter": "N.E.",
      "opinion_index": -1
    },
    {
      "cite": "55 S. E. 613",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
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    {
      "cite": "87 Ark. 330",
      "category": "reporters:state",
      "reporter": "Ark.",
      "opinion_index": -1
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    {
      "cite": "38 Ark. 102",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "140 Ark. 162",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1594425
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      "case_paths": [
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    {
      "cite": "127 Ark. 186",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1550290
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/127/0186-01"
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  "last_updated": "2023-07-14T20:04:40.179276+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Gerard B. Lambert Company v. Rogers."
    ],
    "opinions": [
      {
        "text": "Humphreys, J.\nThis suit was brought in the circuit court of Phillips County by appellee against appellant to recover two months\u2019 wages and the rental value of a house for the same length of time, for an alleged breach of an employment contract. It was alleged that appellant employed appellee on August 1, 1920, as a farm manager on its plantation during the balance of the year, for $275 per month and the use of a house, and that, during the month of October, it discharged him without cause, and refused to pay him Ms salary and the rental value of the house for November and December.\nAppellant filed an answer denying that it discharged him without cause, but that, on the contrary, he voluntarily resigned his position, wMch resignation was immediately accepted by it.\nThe cause was submitted to the jury upon the pleadings, testimony and instructions of the court, wMch resulted in a verdict and consequent judgment for $580, from which is this appeal.'\nAppellant first contends for a reversal of the judgment because the instructions given deprived the jury of deciding the question of whether or not appellee was rightfully or wrongfully discharged. It is true that the complaint alleged the discharge without cause, and that the answer denied it, and alleged a resignation, but the proof was mainly directed to the issue of whether appellee resigned or was discharged. The trend of the testimony eliminated the issue in the pleadings of whether the discharge, if any; was wrongful. The reliance of appellant upon the resignation of appellee as its sole defense made it unnecessary for the court to submit any other issue than whether appellee resigned or was discharged. An instruction submitting the issue of whether the discharge, if any, was without cause would have been abstract and misleading. The court did not therefore commit reversible error in refusing to insert the words \u201cwrongfully and without cause\u201d after the word \u201cdischarged,\u201d in instructions numbers one and two, given at the request of appellee.\nAppellant next contends for a reversal of the judgment upon the alleged ground that the proof failed to show that appellee sustained any damages by reason of being deprived of the use of the house. This contention is based upon the fact that appellant did not rent another house to live in. Appellant testified, however, that he had to board, which amounted to the same thing. There was testimony in the record tending to show that the rental value of the house ranged from $10. to $25 per month.\nAppellant next contends for a reversal of the judgment upon the alleged ground that the court refused to submit its theory of the case to the jury. The theory of appellant is that appellee voluntarily resigned his position, and for that reason was not entitled to recover his monthly salary beyond the date of his resignation. It is true that the court refused to give the instructions asked by appellant to this effect, but the instructions requested by appellant were covered by the oral instructions given by the court upon this issue. The court orally instructed the jury as follows:\n\u201cIf you find from the testimony in this case that the plaintiff, T. L. Rogers, resigned and was not discharged from the employ of the Gerard B. Lambert Company, then you will find for the defendant.\n\u201cYou are instructed that the burden of proof in this case is on the plaintiff, T. L. Rogers, to establish the allegations in this complaint. \u2019 \u2019\nAppellant\u2019s next and last contention for a reversal of the judgment is that appellee accepted a check in payment for his salary until November 1, and by so doing estopped himself from claiming any additional salary. The check was inclosed by appellant to appellee in a Letter of date October 16, 1920, which is as follows:\n\u201cLambrook, Ark., Oct. 16, 1920.\n\u201cMr. T. L. Rogers, Lambrook, Ark.\n\u201cDear sir: Confirming onr verbal conversation on\nMonday the 11th, it is understood that you resigned your position with the Gerard B. Lambert Co., effective at . once, and I accepted your resignation. I am sending you attached, your salary check for the month of October, less your store account to the amount of $226.45. It is -our desire to gain possession of the house in which you live by November 1, if possible, and would appreciate it very much if you would arrange your affairs accordingly.\n\u201cThanking you for past favors and wishing you success in the future, we are,\n\u201cTours truly,\n\u201cThe Gerard B. Lambert Company.\n\u201cE. S. Cole, Asst. Treas.\u201d\nThe answer to this contention is that it was within the discretion of the court to refuse an instruction upon an issue not embraced within the pleadings, and especially an issue which, it was necessary to plead. The defense of estoppel is one that must be specially pleaded. No request was made to amend the answer so as to plead an estoppel. Sims v. Stovall, 127 Ark. 186.\nNo error appearing, the judgment is affirmed.",
        "type": "majority",
        "author": "Humphreys, J."
      }
    ],
    "attorneys": [
      "Moore & Moore and J. G. Burke, for appellant.",
      "John G. She,field and W. G. Dimming, for appellee."
    ],
    "corrections": "",
    "head_matter": "Gerard B. Lambert Company v. Rogers.\nOpinion delivered December 3, 1923.\n1. Pleading \u2014 elimination op issue \u2014 instruction.,\u2014Where, in an action for breach of a contract of employment, in which the testimony was directed to the question whether plaintiff resigned or was discharged, but not as to whether the plaintiff was rightly - or wrongfully discharged, the latter issue was eliminated, \u2022 and an instruction submitting it was properly refused as being abstract.\n2. Master and servant \u2014 breach op employment. \u2014 damages.\u2014In an action for breach of a contract of employment of plaintiff as a farm manager, plaintiff\u2019s contention that he sustained damages by being deprived of a home is sustained, as to the amount of damages caused thereby, by evidence that the rental value of the house ranged from $10 to $25 per month.\n3. Trial \u2014 repetition op instructions. Denial of written instructions covered by the charge given was not error.\n4. Trial \u2014 instructions on issues not pleaded. \u2014 It is within the court\u2019s discretion to refuse an instruction upon an issue not embraced within the pleadings, especially one which it was necessary to plead.\n5. Estoppel \u2014 pleading.\u2014An estoppel must be specially pleaded.\nAppeal from Phillips Circuit C.ourt; J. M. Jackson, Judge;\naffirmed.\nMoore & Moore and J. G. Burke, for appellant.\nThe court erred in giving instructions Nos. 1 and 2, requested by plaintiff, because misleading. 140 Ark. 162. Where an employee voluntarily quits the employment of bis employer, he thereby forfeits his right in the contract of employment, and cannot recover compensation for Ms services. 38 Ark. 102; 87 Ark. 330; 26 Cyc. 984, Master & Servant; 55 S. E. 613; 59 N. E. 524; 20 Eng. Law & Equity, 157.\nJohn G. She,field and W. G. Dimming, for appellee."
  },
  "file_name": "0307-01",
  "first_page_order": 335,
  "last_page_order": 338
}