(dissenting).' The judgment in this case is reversed mainly, if not altogether, on the ground of a want of mutuality in the .contract or agreement sued on, in this, that while the said contract in effect binds the appellant company to give the appellee permanent or life employment with certain exceptions, it' does not compel the appellee to continue in its service for any particular period, or to continue at all.
In support of this theory, the majority of the court cites and mainly relies upon the rule of the common law as stated in East Line & R. R. R. Company v. Scott, 38 Am. & Eng. R. Cases, page 17, and Bolles v. Sachs, 37 Minn. 315, the first a railroad case, and the other a traders’ employment ease, and some cases therein cited.
In Railway v. Scott, an enginer (whether while in the employ of the defendant company or not he received the injury is not stated) sued the company for personal injuries, laying his damages at a certain amount; and, before the termination of the suit, it was compromised by the defendant paying plaintiff the sum of $4,500, and, as the plaintiff claims, in addition to this, the defendant, as part of the consideration of the compromise, was to furnish plaintiff employment in his line for such time as he might desire; and when the plaintiff demanded to be employed under this agreement, defendant refused to employ him, and the plaintiff sued for such refusal, laying damages in the sum of $20,000. There was judgment for plaintiff in the sum of $2,400, and defendant appealed to the supreme court of Texas, where the same was reversed, mainly on the ground that the contract sued on was too indefinite, and wanting in mutuality, the plaintiff having the election and choice of fixing the period for his services to continue, and having failed to exercise that choice; thus leaving the courts without definite basis upon which to found a judgment, as in that case, for damages for refusal to employ as agreed, which case demanded the same definiteness and clearness of proof as if the prayer had been for specific performance of the contract; and a lengthy discussion is indulged as to the doctrine of mutuality in contracts in general.
The case oí Bolles v. Sachs went off on pretty much the same course of reasoning as the case of Railway v. Scott, and was somewhat the stronger, because the nature of the employment whs necessarily less permanent than the other, in the very nature of things.
The ease at bar is quite different, and therefore the authorities cited by the majority of the court, in my opinion, are more or less inapplicable, principally because they are decisions in which it was not necessary for the courts rendering them to look away from the mere letter of the law, formulated in a different age, and in times when many conditions, as respect labor and employment, were unsuited to the changed condition of things and circumstances by which we are now surrounded. The case at bar is not for refusal to employ, but for discharging unjustly and without cause, which the contract forbade, and for refusing to keep the agreement to investigate the causes of discharge, and reinstate if found to be proper.
The plea of want of mutuality in the contract or agreement sued on is simply to the effect that a railway company cannot obligate itself to keep a competent engineer in its service for life or as long as its business continues, and it needs the services of such a one, because that one may have the option to quit its service when his business, convenience or pleasure may move him to do so.
I do not care to worry the profession with a lengthy argument on this subject, but in support of my dissent, I beg leave to refer to and adopt the decision in the case of Carnig v. Carr, 35 L. R. A. (Mass.) 512, and especially the very copious notes thereunder, wherein I think the position of the court is successfully overturned.
I cannot refrain from 'expressing the opinion that the decision in this case is more far-reaching than any that has been rendered by this court in a long time. I am of the opinion that the contract or agreement sued on is not only not objectionable for want of mutuality, but on the contrary is the result of the best thought of men, both professional and practical, whose lives have been devoted to the peculiar and wonderfully complicated and intricate business of operating modern railways. It is, in fact, a necessity to the employee, and an advantage to the employer’s business at the same time, that some such arrangement be had between them, and I think it should be embodied in their contracts rather than in attempts at legislation on the subject, for obvious reasons.