of driver of teaming company hauling for defendant company, which directed when to haul and where to make delivery); Wood v. Cobb, 13 Allen, 58 (plaintiff struck and to do all the delivering for the defendant); NEBRASKA SUPREME COURT. FRED L. NESBIT v. FRANCIS T. GIBLIN et al., Appts. (96 Neb. 369, 148 N. W. 138.) Master and servant - resignation ceptance. -ac 1. Where one employed by the year as a traveling salesman is criticized for granting a minor concession to a customer of his employer, writes to such employer offering wagon made the deliveries. The wagon took the radiators about 9 o'clock in the morning. It made a number of other deliveries coming within its route,-in all something like eight or nine. About half | injured by wagon of one who had contracted past 8 in the evening it reached the premises at which the radiators were to be delivered. This was the last delivery but one for the day. The driver left the radiators on the sidewalk space in front of the lot adjoining the residence being constructed. In doing this he was negligent. The question is whether the transfer company, in making the delivery, was a servant of the defendant for whose acts it is liable under the doctrine of respondeat superior, or an independent contractor for whose acts it is not liable. The defendant exercised no control over the transfer company in the doing of the work. It paid it an agreed compensation per hundred weight. It used this company and other companies. The transfer company exercised an independent calling. The arrangement between the radiator company and the transfer company is a common one. We are unable to hold that the doctrine of respondeat superior applies. The case is quite unlike Waters v. Pioneer Fuel Co. 52 Minn. 474, 38 Am. St. Rep. 564, 55 N. W. 52, where the teamster was hired with his team and was in control of the defendant and under its special direction. transfer company was an independent contractor, and the case comes fairly within the following cases so holding: Riedel v. Moran, Fitzsimons Co. 103 Mich. 262, 61 N. W. 509 (plaintiff, a pedestrian, struck by barrel rolled out of defendant's warehouse on sidewalk by employee of cartage company under contract with defendant to do its carting); Foster v. Wadsworth-Howland Co. 168 Ill. 514, 48 N. E. 163 (death of child on street caused by negligence of driver of teaming company delivering for the defendant at an agreed sum per week); Moore v. Stainton, 80 App. Div. 295, 80 N. Y. Supp. 244, affirmed in 177 N. Y. 581, 69 N. E. 1127 (plaintiff injured while standing on street by being struck by a truck engaged in delivering merchandise of defendant); Burns v. Michigan Paint Co. 152 Mich. 613, 16 L.R.A. (N.S.) 816, 116 N. W. 182 (plaintiff, a pedestrian, injured by express wagon of a licensed expressman delivering merchandise for defendant); De Forrest v. Wright, 2 Mich. 368 (plaintiff, a pedestrian, injured by negligence of licensed drayman in unloading merchandise on sidewalk, he being employed by defend The ants to haul merchandise from warehouse Headnotes by BARNES, J. Note. Necessity of, and time for, acceptance of resignation by employee of a private employer. This question, with respect to public officers, is treated in notes to Reiter v. State, 23 L.R.A. 681, and State ex rel. Royse v. Superior Ct. 12 L.R.A. (N.S.) 1010. The right to repudiate or withdraw a resignation of a public office is discussed in a note to State ex rel. Young v. Ladeen, 16 L.R.A. (N.S.) 1058. A diligent search discloses but one other case than NESBIT V. GIBLIN as to the necessity of, or time for, acceptance of resignation of an employee of a private employer. In that case, Capps v. University of Chicago, 166 Ill. App. 485, where a university professor who was entitled to a vacation credit of ten months with pay tendered his resignation conditionally on its being accepted to take effect at the end of the vacation period, it was held that, as such resig nation was not accepted as offered, but on other terms than those tendered, it was not binding on the professor, and he could not be held to have resigned other than conditionally, that is, to take effect in the future as indicated, without prejudice to his vacation credit. Generally, as to rights and remedies arising out of the discharge of an employee, consult the Index to L.R.A. Notes, "Master J. D. C. and deliver to their store); Chicago Hy- 3. Evidence examined, and found insufficient to authorize the discharge of the employee. Trial instructions. 4. Instructions given and refused ex Ball v. Livonia Salt & Min. Co. 8 Misc. 333, 28 N. Y. Supp. 537; Hughes v. Toledo Scale & Cash Register Co. 112 Mo. App. 91, 86 S. W. 895; Jerome v. Queen City Cycle Co. 163 N. Y. 351, 57 N. E. 485; Gibney v. National Jewelers' Bd. of Trade, 144 N. Y. Supp. 321; Black v. People's Coal Co. 180 Fed. 318; Orr v. Ward, 73 Ill. 318; Beckman v. Garrett, 66 Ohio St. 136, 64 N. E. 62; Atlantic Compress Co. v. Young, 118 Ga. 868, 45 S. E. 677; Sterling Emery Wheel Co. v. Magee, 40 Ill. App. 340; Forsyth v. McKinney, 56 Hun, 1, 8 N. Y. Supp. 561; Gross v. Kathairo Chemical Co. 127 App. Div. 165, 111 N. Y. Supp. 481. It is not necessary that misconduct of the employee be such as to cause actual amined, and found to be without reversible bound to prove any actual loss, in order loss to his employer, nor is the employer to justify discharge for misconduct of his employee. error. A (June 23, 1914.) PPEAL by defendants from a judgment of the District Court for Douglas County in plaintiff's favor in an action brought to recover damages for alleged wrongful discharge of plaintiff from defendant's service. Affirmed. The facts are stated in the opinion. Messrs. Will H. Thompson and Will E. S. Thompson, for appellants: Plaintiff tendered his resignation, which was accepted by the defendant company before it was withdrawn, and this mutual agreement to terminate the contract is binding upon both parties. Greer v. Featherston, 95 Tex. 654, 69 S. W. 69; New York L. Ins. Co. v. Thomas, 47 Tex. Civ. App. 150, 103 S. W. 423; 26 Cyc. 983. Insolence or disrespectful conduct of an employee toward the employer or disobedience is a good ground of discharge. Parker v. Farlinger, 122 Ga. 315, 50 S. E. 98; Alexander v. Potts, 151 Ill. App. 587; Abenpost Co. v. Hertel, 67 Ill. App. 501; Railey v. Lanahan, 34 La. Ann. 426; Darden v. Nolan, 4 La. Ann. 374; Forsyth v. McKinney, 56 Hun, 1, 8 N. Y. Supp. 561; Sterling Emery Wheel Co. v. Magee, 40 Ill. App. 340; Gallagher v. Wayne Steam Co. 188 Pa. 95, 41 Atl. 296; Jacoby v. Fox, 33 Misc. 767, 67 N. Y. Supp. 955; Leatherberry v. Odell, 7 Fed. 641; Frederich v. Ralli, 11 La. Ann. 425; Jerome v. Queen City Cycle Co. 163 N. Y. 351, 57 N. E. 485; Von Heyne v. Tompkins, 89 Minn. 77, 5 L.R.A. (N.S.) 524, 93 N. W. 901; Russell v. Inman, 79 App. Div. 227, 79 N. Y. Supp. 681; Shields v. Carson, 102 Ill. App. 38. The employment by the servant of his master's time for the servant's own use justifies a discharge. 26 Cyc. 988; Beckman v. Garrett, 66 Ohio St. 136, 64 N. E. 62; Wade v. William Barr Dry Goods Co. 155 Mo. App. 405, 134 S. W. 1084; Hughes v. Toledo Scale & Cash Register Co. 112 Mo. App. 91, 86 S. W. 895; Russell v. Inman, 79 App. Div. 227, 79 N. Y. Supp. 681; Adams' Exp. Co. v. Trego, 35 Md. 47; Wood, Mast. & S. § 116. Messrs. McGilton, Gaines, & Smith, for appellee: There was nothing in the conduct of plaintiff to justify defendant in discharging him. Shaver v. Ingham, 58 Mich. 649, 55 Am. Rep. 712, 26 N. W. 162; Tickler v. Andrae Mfg. Co. 95 Wis. 352, 70 N. W. 292. Barnes, J., delivered the opinion of the court: This action was brought in the district court for Douglas county to recover damages alleged to have been sustained by plaintiff for his wrongful discharge from his employment as a traveling salesman of the defendant company. The plaintiff's petition was in the usual form in such cases. By defendant's answer it was alleged that plaintiff had tendered his resignation as defendant's salesman on May 21, 1910, and that defendant had accepted plaintiff's resignation; that plaintiff had been guilty of unjust criticism and insolent conduct toward his employer; that plaintiff had been guilty of using part of his time in his own private affairs. The reply was in effect a general denial. There was a trial to a jury which resulted in a verdict and judgment for the plaintiff for $1,054.13, and the defendant has appealed. It appears that on the 21st day of December, 1909, defendant Giblin & Company employed the plaintiff as a traveling salesman for one year, at a salary of $2,100, they will handle that instead of the 4 series, which they declared they would not handle more than to carry the sample at the old price. Now, by handling this in the way I did, they will use the 8 series, and at a price which is an advance on same size furnaces and the same size fire pots, with the same amount of iron, of about 7 per cent over last year's price." The letter also contained the following: "After getting this much of an advance on this contract and handling it in this way, you tell me in your letter that I deliberately cut the price and am not working to your interest. Any such thought or idea of my deliberately cutting the price and not working to your interest is as far from the truth as you are to-day from Halley's Comet, and if there has ever been any deal made or transaction by me since I have been in your employ in which your interest has not been fully considered to the best of my judgment, it has been because my judgment has not been good, and not because my intentions were wrong. payable in monthly instalments of $175 swung them over to the 8 series, so that per month. The contract was in writing. The bill of exceptions discloses that in May, 1910, certain differences arose between plaintiff and defendant out of a sale made by the plaintiff to the firm of Abel & Doyle of Indianapolis, Indiana. Plaintiff had been continuously in the employ of the defendant, with the exception of one year, for the ten years preceding the written contract of December 21, 1909. It is apparent that he had been a trusted employee, and had often advised with his employers in respect to their business affairs. When the plaintiff visited the firm at Indianapolis known as Abel & Doyle, he took a certain order for furnaces, which was submitted to his employers under a blank form, and subject to their approval. The above-mentioned sale was the subject of a letter to plaintiff from defendant written May 16, 1910, which contained some very caustic criticisms of plaintiff's method of doing business. The letter contained this language: "When all is said and done, we are the ones who are paying your salary and expenses, and we can only do so out of the profit we make on the goods we sell, and your inclinations are very strongly in the way of giving to customers everything possible that you can give them. . We wish you would bear this carefully in mind, and before making concessions to customers, find out what we think about the matter before making these concessions. This refers particularly to what you have done for Haines and also what you have done for Abel & Doyle. During the past year we have sold Abel & Doyle our 7 series furnaces on exactly the same terms we sold the other furnaces, and never had any complaint about it, nor any suggestions that we should do any differently. We find that you have given them 5 per cent additional on the 8 series furnaces, and believe this 5 per cent was given to them without any need whatever, and is just so much thrown away. We certainly are not at all pleased that you go to old customers and reduce prices to them, which we consider wholly unnecessary, and it leads us to believe that it might be better not to have sent you there at all. . While I have a contract with you yet for the balance of this year, I should feel guilty to accept the salary and have you feel as you intimate in this letter that you do feel, and if you have any such feeling, I would be glad to have you accept my resignation, and I will remain here until I hear from you, for I do not feel that I could go to Minneapolis and put up the fight that is necessary-or any other place in the interest of your business, with any such insinuation resting against me as I infer from your letter." It will be observed that this letter contains an offer to resign, coupled with the condition, however, that the writer will remain where he is until he receives a reply. The defendant did not answer this letter. In a few days the plaintiff went to Minneapolis and transacted business there for the defendant in the way of an adjustment of some former sales, and while there again wrote to the defendant. Meanwhile no intimation was made by the defendant that it intended to accept the plaintiff's conditional offer to resign, but defendant wrote again finding fault with plaintiff's sales at Indianapolis. Without quoting from these letters, it is sufficient to say that they contained repeated faultfindings When plaintiff received this letter, with plaintiff's conduct, and also were full which seemed to reflect both on his ability of criticisms and somewhat insolent stateas a salesman and his integrity, he wrote to ments. On May 29th, the plaintiff wrote his employers with respect thereto. The the defendant as follows: "I wish to say letter was written on May 20th, and among in the above paragraph you have assumed other things contained the following state- and said things that have not been proven, ment: cannot be proven, and while I have no "By thus making them this discount, I'money to give away to anyone, I will send On the order you have sent in, the difference is $63.19, an wholly unnecessary allowance." you a check at any time for $100 if you can prove the above assertion, that they (meaning Abel & Doyle) intended to use all along the 8 series. You say farther along in your letter, on page 3 of same, they had no intention of ordering 4 series furnaces, and would not have done so in any case. They intended ordering just what they did order and they got from me $57.93 better price than they would have been willing to pay, and it was this action of which you complained. If this statement is true, as above stated, then what I have said to you is not true, and I will not rest under the above accusation from you or anyone else. Unless I hear from you immediately on receipt of this letter, retracting the above statements, which I defy you or anyone else to prove, as soon as I am finished up with the transactions here in connection with the Gilmore deal, I will leave immediately for Indianapolis, Indiana, and procure affidavits substantiating my statements to you." On June 4th defendant telegraphed to plaintiff that no answer would be given to his letter. The plaintiff then went to Indianapolis and procured some affidavits respecting the matter and forwarded the same to his employers. In pursuance of his employers' business, Mr. Nesbit went to Minneapolis and settled an old and complicated deal whereby he collected some $900 for his employers. It appears that plaintiff's wife had been ill and in the hospital since November, and in June he wrote to his employers to the effect that he wished to take his wife home, and it would be necessary to use one or two days in his affairs at Omaha in straightening out the house so his wife could live in it. The plaintiff returned to Omaha about June 8th, and with the exception of a day in straightening up his affairs he was engaged in his employers' business, taking an order at Council Bluffs, Iowa, and likewise one at Onawa, which were sent to the defendant, who on June 20th wrote the plaintiff as follows: "In a letter addressed to us from Milwaukee dated May 21st you tendered your resignation. We write you to say that we hereby accept this resignation to take effect immediately. Please send to us at once, all books, letters of introduction, etc., belonging to us, and send statement of your expense account to date." To this letter plaintiff replied as follows: "Answering your letter of June 20th in reference to my letter from Milwaukee on May 20th in reference to my tending my resignation at that time, I did so, and would have been very much pleased to have had you accept it at that time, which I asked you to do, and said I would remain in Milwaukee until I heard from you. In your answer you did not accept my resignation. I therefore kept on at work. I would say at this time that conditions have changed and the opportunities I had at that time have been lost, and under the present conditions I am still in your employ, working under contract of 1910, and am waiting here for your directions as to route, also expense money." To this letter defendant replied on June 24th as follows: "Answering yours of June 22d, your resignation was presented to us and accepted and your services with us are ended. We have to-day inserted a notice in the Trade Papers, stating that you are no longer in our employment," etc. It will thus be observed that the basis for the discharge of plaintiff in both of defendant's letters was that they had accepted his offer to resign on May 20th. Notwithstanding this claim, defendant wrote to plaintiff on June 6th in relation to some advertising matter, and their letter contains the following: "We intend following up these with issues at frequent intervals until November, and will forward them to you as issued. You will probably run across them in the hands of some of the dealers you visit. We will keep you fully informed in regard to all inquiries in your territory so that you may follow them up closely and get sample orders." This letter was written two weeks after the plaintiff made his conditional offer to resign, and it thus appears that defendant had no intention to accept his conditional offer of resignation, but on the contrary expected him to continue his work. Whether the plaintiff acted prudently or wisely in the matter of the contract with Abel & Doyle was not in issue in this case. He felt aggrieved at the caustic criticisms of his employers, and wrote them that he was willing to tender his resignation, as he did not wish to continue in their service if they felt toward him as their letters seemed to indicate. Their answer to his letter clearly intimated that they would expect him to continue in their employ, and their telegram to the effect that no answer would be given to his letter informing them of his intended trip to Indianapolis implied that they did not object to his making that trip. The matter, however, is of minor importance, because the affidavits which he obtained in Indianapolis were forwarded to the defendants and they did not write to him concerning it, and made no criticism in relation to it. When they discharged the plaintiff some two weeks later they made no reference to the affi merous other errors are assigned in giving and refusing instructions. We have examined the instructions given and refused, and find the same to be without reversible error. duct towards his employer; that plaintiff was a man of superior ability and education; and that his conduct towards his employer was neither due to inadvertence nor ignorance, and therefore the defendant was justified in discharging him from its service. A careful examination of the correspondence discloses that the plaintiff treated the defendant in all of the letters written by him with reasonable courtesy and consideration. We find nothing in plaintiff's conduct which would justif the defendant in discharging him. It appears from the testi davits or his conduct in that matter, but the evidence contained in the record. Nubased the reason for his discharge specifically upon the ground that they had accepted his resignation, which had been tendered more than thirty days before. Having thus assigned a reason for the plaintiff's discharge, the defendant should not be now It is contended that the defendant was heard to urge any other or different reason. justified in discharging the plaintiff beUpon the testimony which has been par-cause he was guilty of disrespectful contially set forth in the opinion the cause was submitted to the jury, and the defendant contends that the court erred in instruction No. 6, given to the jury on his own motion. The instruction complained of reads as follows: "You are instructed the letter written by the plaintiff on the 20th or 21st day of May, 1910, was not of itself a letter of resignation, but was what might be termed in law a conditional resignation, and by the terms and conditions of said letter the defendants had the right to accept or reject the said resignation on or before the time fixed by the said letter of said date. And in this connection you are fur-mony that plaintiff, from the time he was ther instructed the defendants did not comply with the terms and conditions of said letter on that date, and as a matter of law, had no right to accept said resignation at a later time than that fixed by the terms and conditions of said letter, unless you find from a preponderance of the evidence that the plaintiff was guilty of misconduct toward the defendants subsequent to the time he left Milwaukee for Minneapolis, or unless you further find that the defendants had discovered other misconduct of the plaintiff that occurred prior to the time they answered the letter written by the plaintiff at Milwaukee, Wisconsin, dated on the 20th or 21st day of May, 1910." We think this instruction correctly stated the law. There was no conflict in the evi dence, and, as we view the letters which passed between plaintiff and defendant, plaintiff's conditional letter of resignation was not accepted by the defendant; but plaintiff was deliberately continued in his employment for practically thirty days after he wrote the letter of May 21, 1910. discharged until the latter part of December, 1910, was unable to find profitable employment, and therefore the amount of the verdict is not excessive. In fact no serious complaint of that kind is made by the appellant. As we view the record, the defendant had a fair trial, and, finding no reversible error in the record, the judgment of the District Court is affirmed. Letton, J., concurs in conclusion. Rose, J., not sitting. Petition for rehearing denied. Bond treasurer — accounting for bank deposit. 1. A town treasurer who, upon re-election to office, continues a deposit account of the town's money in a bank so insolvent that it Note. · Right of reimbursement or contribution as between sureties of official for different terms. It is next contended that the court erred in refusing to give instruction No. 6, requested by the defendant, as follows: "The court instructs the jury that in his letter of May 21st the plaintiff tendered his resignation to the defendants, and that, unless you find that said resignation had been withdrawn prior to the 20th day of June, the defendants had the right to accept said resignation, and that, after such acceptance, said resignation could not be withdrawn." Y Co. seems not to have used the term "contribution" in its strict sense as apWe think the court was justified in replied in the law of suretyship, at least, the fusing this instruction, as it does not ac-surety for the first term was held liable cord with the facts, and is not applicable to to the extent that the moneys were lost The court in YAWGER V. AMERICAN SURE |