Appellee, Edward Haughton, recovered judgment in the sum of $1,000 (the amount prayed for was $14,800) against appellant, Sam E. Wilson, Jr., as damages for breach of contract of employment as trainer of race horses owned by appellant.
Reversal of that judgment is asked upon the following grounds: 1. An employee suing for breach of employment contract must both plead and prove reasonable diligence in seeking other employment and (a) appellee did not allege exercise of reasonable diligence to secure other employment or (b) prove exercise of any diligence in seeking other employment. 2. The contract of employment was terminable at any time. 3. The verdict was flagrantly against the weight of the evidence.
In the original petition appellee sought damages on the count of several items of loss which he believed to have resulted from the breach of contract, among them being a claim for loss on the sale of two horses, which allegedly he was required to sell in order to accept employment, a claim for travel and other expenses and a claim of damages in the amount of $10,000 for loss of salary. The claims based upon the sale of the horses and for expenses were not submitted to the jury and since there is no cross-appeal, only the claim for the loss of salary is here involved.
The petition which contained a full allegation of facts in connection with the salary claim made this allegation: "The plaintiff further says that he received offers from other parties to train and handle their horses, but declined said offers by reason of the promises and agreements of the defendant which composed the aforesaid contract between the parties hereto; that after the breach of said contract, the owners of thoroughbred horses had secured trainers, and he was unable to secure employment.'
In support of his contention that such an allegation is insufficient, appellant relies upon the following cases: Abrams v. Jackson County Board of Education, 230 Ky. 151, 18 S.W.2d 1000; Newport Dairy Shackelford, 261 Ky. 754, 88 S.W.2d 940; Louisville & N. R. Co. v. Wells, 289 Ky. 700, 160 S.W.2d 16, all of which contain the statement that a plaintiff must plead and prove, in an action for breach of an employment contract, that he exercised reasonable diligence to obtain other employment because the law does not imply loss of time and employment by reason of discharge. In no one of the above opinions is the specific language of the petition quoted. The questions before the court do not seem to involve the sufficiency of the language used and the opinions seem to imply that no allegation, however defective, was made, with the exception of the Newport Dairy case where it was stated: "His petition in this respect contains appropriate allegations', [261 Ky. 754, 88 S.W.2d 942] and this case was decided on the ground that the allegation was not proven.
The Abrams case ]230 Ky. 151, 18 S.W.2d 1001[ contains an affirmation of the general rule and the opinion concludes: "Unfortunately for plaintiff, she failed to meet the burden either in pleadings or in proof, and for this reason the appeal must be denied, and judgment affirmed.'
In the Wells case ]289 Ky. 700, 160 S.W.2d 18[ this statement is made: "The plaintiff did not plead or prove that he had been unable to procure any employment during the six years and more since his alleged recovery or that he had not earned any money at all.'
We must therefore return to the above-quoted allegation from the petition in order to determine whether or not it was sufficient, since we do not have the words used in the other petitions as examples.
Appellant insists that the allegation is a mere conclusion. We have many times echoed the statement that facts -- not conclusions of law -- must be pleaded. But, any attempt to distinguish between words that express facts and words that state conclusions has been accompanied by difficulty.
Judge Rees, in Johnson v. Inter-Southern Life Ins. Co., 244 Ky. 83, 50 S.W.2d 16, stated this rule of guidance:
"Facts, and not conclusions of law, must be pleaded, but it is sufficient to plead ultimate facts as distinguished from probative facts. The latter are merely matters of evidence required to prove the ultimate facts and should not be pleaded.'
The "ultimate fact,' in connection with this phase of the case, concerns whether appellee could obtain employment after the averred breach of contract. We believe the allegation, "that after the breach of said contract, the owners of thoroughbred horses had secured trainers, and he was unable to secure employment,' was an averment of the ultimate facts and not a mere conclusion of law.
It was said in Hunt's Ex'x v. Mutter, 238 Ky. 396, 38 S.W.2d 215, 217, that:
"The purpose of pleadings is to apprise an adversary of the issue he is required to meet. Wickliff v. First National Bank, 184 Ky. ]783,[ 784, 213 S.W. 581. It is a firmly fixed rule that a verdict will cure defective pleadings unless the substantial rights of the adverse party have been prejudiced. Hill v. Ragland, 114 Ky. 209, 70 S.W. 634, 24 Ky.Law Rep. 1053; Louisville & N. R. Co. v. ...