Whitley v. Murray

¶1If the merchant had made an effort to-collect out of Mr. Murray the value of the stationery supplied to Mr. Whitley, it would have been important to prove, that he’, Mr. Whitley, had authority, express or implied, to purchase such articles on the credit of Mr„ Murray, his employer, and thus charge him in account with the merchant. This record presents a different question. After purchasing the articles, and having them charged to Mr. Murray, Mr. Whitley paid the account— voluntarily, so far as this record discloses; and he now seeks to recover from Mr. Murray the money so paid.. This state of the facts leaves Mr.' Whitley in an inextricable dilemma. If he had authority to purchase the-articles on Mr. Murray’s account, then his subsequent payment of the account was unauthorized — was not at the instance or request of Mr. Murray, and cannot, under the facts disclosed in this record, give him a right of action. On the other hand, if he had no authority to purchase on Mr. Murray’s account, the payment by him was but a payment of his own debt, and gives him no cause of suit against his employer. — Addis, on Con. 58. It is thus shown that we need not decide, whether the testimony offered was competent proof of agency.

¶2[2.] So far as this record discloses, Mr. Whitley voluntarily left the service of Mr. Murray. This he had no-authority to do ; and hence he fails to show a breach of the contract by his employer. His contract being for the* entire year, and he having failed to serve the year out, he cannot, according to the terms of his contract, recover for the time ho served, or for a breach of the contract, without proof that ho had been discharged, or that his employer had broken his contract, and thus authorized *159Mm to leave the service. There being an entire absence of pro.of of either one of these propositions, the court was fully-justified in giving the chai’ge excepted to.

¶3There is nothing in this record' which shows that the circuit court, of its own motion, gave the charge to which exception was taken.

¶4Judgment of the circuit court affirmed.