Johnson's Administrator v. McCune

delivered the opinion of the court.

The instructions in this case are inconsistent with each other. The court declares that McCune’s letter of February, 1852, did not amount to a contract that the Jeanie Deans should be out in April, in accordance with the decision made by this court when the case was here before; (see 21 Mo. 215 ;) but gives the first and second instructions on behalf of the plaintiff, which are altogether based upon the hypothesis that such a contract was made. The only proof of such a contract was McCune’s letter of February, 1852.

*175The plaintiff’s conduct and letter of September 3d, 1852, are not at all reconcilable with the claim he asserts in this, case for wages froha April 1, 1852, to September 15, of the same year. The letter of the 3d of September does not allude to any claim for back wages, and if he had then been employed would he have been entitled to wages from the 1st of April ? Is it not remarkable that from the 1st of April to the 18th day of August, when the Jeanie Deans made her first trip, that Johnson never made any inquiries of the company relative to the time they would probably want his services, and never advised them that he considered himself all that time on wages ? Ought he not, if he so regarded the engagement between him and McCune, to have reported himself and informed them that he was idle, waiting on them for employment ? Is it not reasonable that such would have been his course ? If the company had been apprised of this, and had understood the contract as he did, they might, with his consent, have furnished him with other employment equally acceptable to him and profitable to them. But it does not appear that from the 1st of April down to the 18th of August the plaintiff, though frequently in St. Louis, ever mentioned the subject to McCune, and it was not until the 3d of September that he spoke to him, and his letter of that'date does not complain of the nonpayment of past wages.

If no wages for the time previous to the coming out of the Jeanie Deans were due to Johnson, then the damages arising from the breach of the contract to employ him at that time, if such a breach occurred, must be estimated as they would be for the breach of any other contract, without reference to what had occurred previously.

The judgment is reversed and the cause remanded;