Freund, Stanton and Conlon. The opinion of the court was delivered by Stanton, J.s.c. (temporarily assigned).
This action was brought by the plaintiff to recover damages for the breach of an employment contract. The defendants appeal from a judgment entered upon a verdict in his favor.
The appellants contend that the trial court erred in failing to charge the jury on the defense that the contract, if in fact proved, had been terminated by mutual consent; and in denying their motion made during the trial to amend the pleadings to set up the defense of accord and satisfaction.
The defendants as joint venturers had a contract with the United States Government for construction work in North Africa; the plaintiff, a retired army officer then residing in
Texas, was engaged in April 1951 by the defendants as a progress engineer. He commenced work on April 18, 1951 and continued in the employment of the defendants until August 3, 1951. On that day he was paid his salary to August 10, 1951, together with the further sum of $356.55 which was to reimburse him for certain expenses that he had incurred and to defray the cost of his returning to Texas from Newark.
The basic dispute in the case was whether he was engaged for a period of one year at a salary of $12,000 payable in equal monthly installments, or, as the defendants contend, for an indefinite period at the rate of $200 weekly together with travel allowances. The pretrial order contains this statement: "Defendants claim also that plaintiff was not discharged but voluntarily terminated his employment by agreement with the defendants." Upon the argument the defendants conceded that the jury in effect found that there was a contract for a year's employment. The trial court charged that the issue was as to the nature of the employment contract, that is, whether it was for a period of a year or merely on a week-to-week basis, and the rate of compensation. In the course of the charge it was stated:
"I charge you as a matter of law that the acceptance by Colonel Ball of amounts over and above that to which he would be specifically entitled, his day by day compensation, and any agreement that he would give up any further claim, is not a matter of defense and is not a bar to his action, if you feel that he is entitled to a certain claim for his salary for the remaining part of the year."
At the conclusion of the charge, the defendants' attorney called the court's attention to the fact that in the pretrial order one of the defenses raised was the voluntary termination of the employment by the plaintiff, and expressed the opinion that there was proof to that effect. Thereupon the court further charged the jury, but did not cover the point raised by the defendants. Upon the conclusion of the additional charge, the plaintiff's attorney stated that he had
no objections, and the defendants' attorney made the following statement:
"The defendants object to the charge of the Court insofar as it is covered the defense of voluntary termination of services. (Sic) We move that the Court charge that even if there was a contract established, a voluntary termination by the plaintiff should entitle the defendant to a verdict of no cause of action."
The court made no response to this motion, but directed that the officers be sworn, and thereupon the jury retired.
Rule 3:51-1 provides that either before or at the close of the evidence any party may file written requests that the court instruct the jury on the law as set forth in the requests, and that no party may urge as error any omission from the charge unless he objects thereto before the jury retires. This is ...