Markham v. Krumbholz

If it be assumed that the nature of the plaintiff’s employment was such as necessarily required her to work on Sunday and that the refusal to work was a sufficient ground for discharging the plaintiff from her employment, there is complete answer to the defendant’s claim and that is that it could not have been intended by the parties that the plaintiff should forfeit the amount mentioned in the agreement, as liquidated damages, if she was discharged by the defendant. A construction which would compel the plaintiff to pay or allow the defendant, seven dollars for discharging her would cause, this provision of the contract to operate contrary to the intention of the parties, and should not be resorted to unless the language used demands it. I cannot discover any sufficient or satisfactory reason for such a conclusion.

The language of the contract is: “ In the event of my not giving satisfaction * * * and for any disregard on my part, of any of the stipulations of this contract I may be discharged.” That is the punishment provided for that breach. It also provides that if “ I *419leave while my services are required, I agree to forfeit the amount of seven dollars as liquidated damages hereby agreed upon.” The forfeiture is the specific provision made by the contract for this breach, and the rule of expressio unius est exolusio dlterius would prevent a forfeiture for any other default. I think it is clear that the appellant’s contention cannot be sustained, and that the judgment should be affirmed, with costs.

All concurred; Smith, P. J., and Cochrane, J., in result.

Judgment affirmed, with costs.