EMPLOYMENT.

It is within the police power of the state for the General Assembly to consider that the morals of the community are injured by the keeping and exhibiting of gaming tables even when their owners are not financially interested in the outcome of the games, and that the morals of society are benefited by restricting the opportunities of its members to engage in gambling practices. This the General Assembly has done by enacting that the keeping and exhibiting of such tables. constitute a misdemeanor, without regard to the owner thereof being "concerned in interest" in the games or in profits derived from the use of the table.

The second provision is altogether different from the first, and is obviously intended to reach beyond the person who actually keeps and exhibits a gaming table, to any person who "shall be a partner or concerned in interest in the keeping or exhibiting such table." We are of opinion that the statute contemplates two offenses, and that the interest that determines the latter is no material ingredient of the former. The motion

is refused.

1. COVENANT, ACTION OF (§ 3*)-SCOPE OF REMEDY-ACTIONS ON SEALED CONTRACTS. The action of covenant is a proper form of action for the recovery of damages for the breach of a contract under seal.

[Ed. Note.-For other cases, see Covenant, Action of, Cent. Dig. § 9; Dec. Dig. § 3.*] 2. CONTRACTS (§ 176*)-CONSTRUCTION-QUESTIONS OF LAW.

The meaning of a contract is a question of law.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 767-770, 917, 956, 979, 1041, 1097, 1825, Dec. Dig. § 176.*]

3. MASTER AND SERVANT (§ 43*)—ACTIONS FOR BREACH OF CONTRACT-QUESTIONS FOR JURY.

In an action for breach of a contract of employment, whether plaintiff had been guilty of conduct amounting to a breach of the stipulations of the contract, implied or expressed, justifying dismissal, was a question of fact for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 57, 58; Dec. Dig. § 43.*

Where, under a contract of employment for one year from April 14, 1913, at $30 a week for the first six months, and $35 a week for the second six months, the first week of services was did not prevent the contract from going into waived by agreement of both parties, the waiver effect on April 14, 1913, and the first six months of employment ended on October 13, 1913, and the second six months on April 13, 1914.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 8-10, 17; Dec. Dig. § 8.*] 5. MASTER AND SERVANT (§ 30*)—DISMISSAL

-JUSTIFICATION.

Whether the dismissal of a person, employed as manager of a department store, was justified by anything done or omitted by him as manager, may be determined with respect to conditions shown to exist in the store for which he was not responsible.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 30-36; Dec. Dig. §

30.*]

6. MASTER AND SERVANT (§ 53*)-PERFORM

ANCE OF SERVICES-DEGREE OF SKILL REQUIRED.

In a contract of employment, and especially in a contract by which the employé stipof the employer usually done by persons occuulated to do all things for the best interests pying the position of manager of a department store, a stipulation is implied that the employé is reasonably competent to perform the work employé to do the best he could in the service undertaken; and it was not sufficient for the he perfomed, if he did not do what was reasonably required of a man occupying the position undertaken by him.

Servant, Cent. Dig. § 67; Dec. Dig. § 53.*] [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 67; Dec. Dig. § 53.*] 7. MASTER AND SERVANT (§ 56*)-PERFORMANCE OF SERVICES-DEGREE OF SKILL REQUIRED.

ment store, and who by his contract agreed to A person employed as manager of a departserve the firm diligently and according to his best abilities, and generally do all things for the best interest of the firm usually done by persons occupying such position, was only required to substantially comply with the provisions of the contract; and if he was fairly efficient manager, gave his whole time and all of his ability to the business, and in good faith performed. his duties to the best of his ability, and did not misconduct himself or otherwise violate the provisions of the contract, there was a substantial compliance, notwithstanding occasional mistakes which might have been made by any competent manager.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 56.*]

8. MASTER AND SERVANT (§ 3*)-PERFORMANCE OF SERVICES-DEGREE OF SKILL REQUIRED.

A person employed as manager of a department store, who by his contract agreed to serve his employer diligently and according to for the best interests of the employer usually his best abilities, and generally to do all things done by persons occupying such position, neither insured nor guaranteed the results of his

work as manager.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 2, 3; Dec. Dig. § 3.*] 9. MASTER AND SERVANT (8 30*)-DISMISSAL -JUSTIFICATION.

If a person employed as manager of a department store failed to do the things usually

The further claim is made by the plaintiff that he faithfully, fully and in a competent manner performed all his covenants contained in the contract of employment, and that his dismissal was without justification or legal reason on the part of the defendants, and by the defendants' action he suffered damages in an amount equal to his wages for the unexpired term of the contract, less such amounts as he was reasonably able to earn, during that time. In support of his claim for damages the plaintiff testified that he earned $15 a week from September 17th to October 26th and from November 10th to the present time he earned $62 a month.

The defendants dispute these claims of the plaintiff, and contend that William F. Carroll, the plaintiff did not perform his duties. as manager in a competent manner, and he failed to efficiently do those things usually done by persons occupying such position as manager, and generally his conduct of the business was of such a nature that it amounted to a breach, on his part, of the provisions of the contract, also that he misconducted himself, and therefore they were justified in dismissing the plaintiff from their employ and thereafter discontinuning his services. The defendants also contend that under the terms of the contract they were the exclusive and final judges of the efficiency of the plaintiff and the satisfactory nature of the work performed by him in their services, and whether they should continue him in their employ was optional with the defendants.

[2] The meaning of a contract is a question of law, and it is necessary for us to construe the terms of the contract to an extent necessary for the jury to understand it.

[3] The agreement entered into by the plaintiff and defendants was a legal contract. Under its terms the plaintiff covenanted to perform certain services for the defendants and it was incumbent on him to do his work in the manner stipulated. For the defendants to justify the dismissal the plaintiff must have been guilty of such conduct as would amount to a breach of his stipulations either implied or expressed, and whether their action was justified under the terms of this contract, is a question of fact for the jury to determine.

[4] The contract called for the plaintiff to assume his duties on April 14, 1913, but by agreement of both parties the first week of services were waived, but this waiver did not prevent the contract from going into effect on April 14th.

The contract was for a period of one year from the 14th day of April, 1913, and for the first six months the plaintiff was to receive a certain weekly wage and for the second six months the amount of his wages was to be increased. In this connection we

[5] The question for the determination of the jury is whether or not the defendants' discharge of the plaintiff from their employ, prior to the expiration of the time of employment named in the contract, was justified by the omission on the plaintiff's part of anything he should have done, or by the commission by him of anything he should not have done, as manager under the contract, of the defendants' retail business. The plaintiff's conduct in this regard is to be determined with respect to conditions shown by the evidence to have existed in the defendants' store, for which he was not responsible.

[6] There is an implied stipulation in contracts, like the one now under consideration, that the servant is reasonably competent to perform the work undertaken by him, and in this agreement it is expressly provided that the plaintiff "shall generally do all things for the best interests of said firm that are usually done by persons occupying such position as manager." It is not therefore sufficient for the plaintiff to merely show that he did the best he could in the service he performed. He must show that he did what was reasonably required of a man occupying the position undertaken by him.

[7, 8] Plaintiff must show a substantial compliance with all the provisions of his contract, and an occasional mistake which might have been made by any competent manager of such a business is not inconsistent with a substantial compliance; and if you believe from the evidence that the plaintiff was a fairly efficient manager, within the contemplation of the contract, and he gave his whole time and all of his ability to the conduct of the defendants' retail business as the manager thereof, and in good faith performed his duties to the best of his ability in behalf of the defendants' interests, and during the said term of employment did not misconduct himself and did not otherwise violate the provisions of his contract, your verdict should be in favor of the plaintiff.

On the other hand, mistakes made by plaintiff in the performance of his duties, of a nature that would substantially affect the business of the defendant, is evidence to justify the dismissal of the plaintiff by the defendants. However, the plaintiff neither insured nor guaranteed the results of his work as manager of the business.

[9] If you should find from the evidence that the plaintiff was incompetent or was negligent, or managed the business of the defendants badly or in an improper way, or if he misconducted himself while in their employ, or if the plaintiff failed to do the things usually done by one engaged to do the work he agreed to do, or if you believe from the

evidence that the plaintiff was not competent to do the work he contracted to do, or being competent he did not exercise his ability and properly supervise the buying and selling of the merchandise of the store, your verdict should be for the defendants.

Levin Irving Handy, of Wilmington, for appellant. Armon D. Chaytor, Jr., Deputy Atty. Gen., for the State.

PENNEWILL, C. J. (delivering the opinion of the court). In the above stated case an information was filed by the state in the following language:

September Term, 1914.

New Castle County-ss.:

[11] Where the evidence is conflicting, as it is in this case, you should reconcile it if you can; but if you cannot do so, you should accept as true that part of it which you deem worthy of credit, and reject that part you deem unworthy, having due regard to the opportunity and capacity of the witnesses to know of that of which they speak, and their apparent fairness or bias.

[12] If you find for the plaintiff your verdict should be for the amount of his wages, as contracted for, for, the unexpired portion of the term of employment, less the amount he has earned or might, by reasonable effort, have earned in other employment during such unexpired term.

If you find for the defendants, your verdict should be simply for the defendants. Verdict for plaintiff.

1. CRIMINAL LAW (§ 1139*)-APPEAL-TRIAL DE NOVO-MOTION TO, QUASH INFORMATION. An information for assault and battery, filed in the Court of General Sessions on appeal from the municipal court, will not be quashed because it states the result of the municipal court trial and the sentence imposed, although the trial in the Court of General Sessions is de novo, since the court, notwithstanding such statements, can prevent any statement of the outcome of the trial below from reaching the jury.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3000; Dec. Dig. § 1139.*] 2. CRIMINAL LAW (§ 1139*)-APPEAL-TRIAL DE NOVO-REQUISITES OF INFORMATION.

On appeal to the Court of General Sessions from a municipal court, the fact that the sentence of the court below was such as to give the Court of General Sessions jurisdiction of the appeal, under Const. art. 4, § 30, need not be alleged in the information, nor proved, since it sufficiently appears from the transcript, which is a part of the record.

[Ed. Note. For other cases. see Criminal Law, Cent. Dig. § 3000; Dec. Dig. § 1139.*]

of our Lord one thousand nine hundred and fourteen, information makes:

dred in the county and state aforesaid, on the That James Williams, late of Wilmington hunninth day of July in the year of our Lord one thousand nine hundred and fourteen, having been brought before the Honorable Harry P. for the city of Wilmington, state of Delaware, Joslyn, deputy city judge of the municipal court after arraignment, plea and hearing was by the said the Honorable Harry P. Joslyn, deputy city judge of the municipal court as aforesaid, adfifty dollars and the costs of the said prosecujudged guilty and sentenced to pay a fine of tion amounting to the sum of seven dollars and eighty-five cents, and to be committed to the Workhouse for six months at labor at some suitboard of trustees of the New Castle County able employment, eight hours each secular day, unless physically disabled, the said commitment commencing on the said ninth day of July in dred and fourteen, and ending on the eighth day the year of our Lord one thousand nine hunof January in the year of our Lord one thousand nine hundred and fifteen, on the charge in the said municipal court for the city of Wilmington aforesaid of an assault and battery upon one Walter Johnson, in the city of Wilmington aforesaid, the said municipal court for jurisdiction to hear and determine said charge. the city of Wilmington then and there having And afterwards, to wit, on the tenth day of July in the year of our Lord one thousand nine hundred and fourteen, the said James Williams did appeal from the judgment of the said municipal court for the city of Wilmington aforesaid to the Court of General Sessions of the state of Delaware sitting in and for New Castle county, and entered into a recognizance, to prosecute said appeal, as he is authorized to do by the statutes of the state of Delaware in such case made and provided.

Whereupon, in the said Court of General Sessions of the state of Delaware in and for New

Castle county Josiah O. Wolcott, Attorney General as aforesaid, information makes:

That James Williams, late of Wilmington hundred in the county aforesaid, on the sixth day of July in the year of our Lord one thousand nine hundred and fourteen, with force and arms at Wilmington hundred aforesaid in and upon one Walter Johnson, in the peace of God and of the said Walter Johnson did then and there beat, wound and illtreat, and other wrongs to the said Walter Johnson then and there did, to the great damage of the said Walter Johnson, against the form of the act of the General Assembly in such case made and provided, and against the peace and dignity of the state. Josiah O. Wolcott, Attorney General. Armon D. Chaytor, Jr., Deputy Attorney General.

[1] On behalf of the defendant, a motion

It is further insisted that, inasmuch as the information contains averments respecting the proceedings below which can be neither proved or made known to the jury, the same should be quashed.

It is true that upon such an information the trial in this court is de novo, and that no reference can be made here to the proceedings in the municipal court where the defendant was tried. But it does not necessarily follow that the information is bad because it embodies such proceedings, for the court will not permit the information to go to the jury, neither will they allow the state to produce any evidence, or make any statement, to the jury in regard to the proceedings below.

[2] The Constitution of this state in giving jurisdiction to inferior courts in certain criminal cases provides:

"That there shall be an appeal to the Court of General Sessions in all cases in which the sentence shall be imprisonment exceeding one month, or a fine exceeding one hundred dollars." Section 30, art. 4.

Because of such provision the state contends that the imposition of the sentence by the municipal court is a fact that must be averred in the information and proved at the trial in order that the court may have

jurisdiction of the case.

In regard to this contention we say that such jurisdictional fact sufficiently appears from the transcript filed, which is a part of

the record in the case.

The motion to quash the information is

refused.

(112 Me. 267)

AUSTIN v. BAKER.

rails was decayed at the post. Plaintiff went up the barber, but to give him a drink from a botthe stairs to the shop, not for any business with tle of whisky which he carried. As he started to return, plaintiff halted on the platform to talk with another man, and as he did so, he placed his hand on the defective rail, which gave way, and he was precipitated to the ground below and injured. Held, that plaintiff was not an invitee, but at most a licensee, to reasonable care to keep the premises in suitable whom the landlord owed no duty to exercise

condition.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 668-674, 676-679; Dec. Dig. § 167.*]

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Bird A. Austin against Hattie F. Baker. The court ordered a nonsuit, and plaintiff brings exceptions. Exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, and HANSON, JJ. L. B. Waldron, of Dexter, and McGillicuddy & Morey, of Lewiston, for plaintiff. & Skelton, of Lewiston, for defendant. Manson & Coolidge, of Pittsfield, and Newell

SAVAGE, C. J. [1] This case comes before this court on exceptions by the plaintiff to an order of nonsuit. The case as made up contains a part only of the evidence, such part as the plaintiff has seen fit to have printed. This being so, we might very properly dismiss the exceptions. When exceptions are taken to an order of nonsuit, or to

the direction of a verdict, all of the evidence necessarily becomes a part of the case. Such a ruling is based upon the entire evidence. And it cannot be determined that the ruling

was erroneous without an examination of all the evidence. It may be that the errors complained of are cured by the evidence omitted. It was so held in Bank v. Nickerson, 108 Me. 341, 80 Atl. 849. Though the defendant has made the point, she has not absolutely insisted upon it. And we have thought best to examine the case on its merits.

[2] So much of the evidence as is reported shows that the defendant is the owner of

1914.)

upper story was occupied by one Burton and

DENCE.

EVI

Where exceptions are taken to an order of nonsuit or to the direction of a verdict, all the evidence necessarily becomes a part of the case, and must be included therein in order to entitle the excepting party to review the ruling. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2914; Dec. Dig. § 695.*]

tenant at will, under the defendant. The approach to the barber shop was by a flight of stairs on the outside of the building, at the top of which was a platform leading to the outside door of the shop. Around the platform was a railing. One rail was decayed and defective at the post. The plaintiff went up the stairs to the barber shop. He car

Defendant owned a building the upper story

The ap