Nelichka v. Esterly

Berry, J. The evidence in this case shows that plaintiff was in defendants’ employ, under an engagement to work for them for the entire month of December for $50. That plaintiff left defendants’ service on December 23d, and remained away for four days without any excuse, and not only without defendants’ consent, but in the face of their express objection, and that defendants refused to permit him to re-enter their service upon his return, is undisputed, and in fact admitted by both parties. The contract was, then, entire. The plaintiff did not perform on his part. He offers no excuse for his nonperformance, but, on the contrary, his failure to perform was wholly his own wilful fault. In such a state of facts he is not entitled to recover anything for the partial performance of his engagement; namely, for the work performed by him prior to leaving defendants’ service on December 23d. Metcalf on Contracts, 8; Mason v. Heyward, 8 Minn. 116 , (182;) Williams v. Anderson, 9 Minn. 39 , (50;) Stees v. Leonard, 20 Minn. 494 ; Weber v. Clark, 24 Minn. 354 ; Beach v. Mullin, 34 N. J. Law, 343. The verdict is entirely unsupported by the evidence, and the judgment is accordingly reversed.