Williams v. Scott, 70 Ill. App. 51 (1897)

April 15, 1897 · Illinois Appellate Court

70 Ill. App. 51

L. R. Williams v. Charles H. Scott.

1. Errors—Not Affecting the Result Need not be Considered.—Errors in the admission or rejection of evidence, which could have had no affect upon the result, need not be considered by a court of appeal.

2. Master and Servant— Wrongful Discharge—Continued Readiness to Perform not Necessary.—It is the duty of a servant discharged wrongfully, to earn what he can after his discharge, and the words, ‘ ‘ and from thence until the expiration of the period of his employment. ” in an averment of readiness to perforin, are suiplusage and need not be proved.

Assumpsit, for a wrongful discharge. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.

Heard in this court at the March term, 1897.

Affirmed.

Opinion filed April 15, 1897.

Slusser & Johnson, attorneys for appellant.

Johnson, Herring & Brooke, attorneys for appellee.

Mr. Justice Gary

delivered the opinion of the Court.

The appellant was the proprietor of the Park Gate Hotel during the "World’s Pair season of 1893, and engaged the appellee as steward at $200 per month a little before May 1, 1893. At the end of June, 1893, the appellant discharged the appellee. So far there is no dispute on the facts. The case of the appellee is that he was engaged for a term—the World’s Fair season—to end November 1, 1893, while the appellant insists that the engagement was only for a month on trial at $200. As the appellee worked two months, the month on trial seems to cut but little figure in the controversy. On trial implies that something was depending upon the result of the trial.

The preponderance of the evidence is with the appellee as to the terms of the engagement.

That there was any cause given to the appellee for the discharge is not proved, and it is clear that it was against his will, while he was ready, able and willing to continue in the service. He vainly endeavored to find employment during: the next four months.

He sued, and has recovered $500.

Errors, if any there be, in the. admission or rejection of evidence which could have had no effect upon the result, need not be considered.

It was his duty to make efforts to earn what he could after his discharge, and such efforts do not defeat his action, though his declaration does aver “ that at the time of his discharge and from thence until the expiration of the period of his employment he was ready, able and willing,” etc. The words “ and from thence until the expiration of the period of his employment ” are surplusage, which need not be proved. 1 Greenl. Ev., Sec. 51.

The appellee might have sued the day he was discharged, and the trial not coming on until the term of service had ended he would have been entitled to recover his whole salary, less what he could have earned. Mount Hope Cem. Ass’n v. Weidenmann, 139 Ill. 67.

In such an action continued readiness could not have been averred, which proves that such an averment was needless.

The judgment is affirmed.