Appeal from Herkimer County Court.
Action by Aiden Mernagh against Sidney Nichols. Judgment for plaintiff, reversing a justice's judgment, and defendant appeals. Affirmed.
Robson, J., dissenting.
H. A. De Coster, for appellant.
William S. Rhodes, for respondent.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
The judgment appealed from should be affirmed, with costs, and a new trial had before the same justice, on the 15th day of May, 1909, at 10 a. m.
The action was brought by a farm laborer to recover for work, labor, and services performed for defendant upon his farm, and for the [118 N.Y.S. 60] purchase price of some small items of personal property. The total amount of the wages earned was claimed to be $187.50, amount paid thereon $94.92, and balance $92.58; the items of personal property, $1.50. The defendant conceded the payment of $94.92, and interposed a general denial as to the balance of the claims sued on, and then alleged a hiring for one year, and a violation of the contract by plaintiff's leaving at the end of nine months without cause, and some counterclaims. The justice, after evidence given on both sides, rendered a verdict on the merits for the defendant. The decision was not one in the nature of a nonsuit, as to which the rule can be invoked that all contested questions of fact are to be deemed established in favor of the plaintiff. It was a decision on the merits, and the rule therefore applicable is that such contested questions of fact are deemed established in favor of the defendant, and so far as the facts are involved the judgment will not be disturbed, unless without evidence to support it or against the weight of the evidence.
First. As to the $1.50 items, there was a dispute as to whether these were paid in the $94.92, or whether the whole of that amount was paid to apply on wages. The justice having found these items were paid, we should not interfere with such finding. It is true that, the plaintiff having in his complaint alleged the payment of $94.92 was made upon wages, the defendant by his answer admitted the payment of that amount as alleged; but later in his answer the defendant alleged specifically that the sum paid on the wages was $93.40, this amount being $1.52 less than the amount claimed to have been paid on the wages, and there was no specific allegation of payment for the $1.50 items. But we should not hold too strict a rule as to pleading in Justice's Court, and the evidence was given upon the trial with reference to the payment of these items, without objection as to the form of the pleadings. The defendant did not rely upon the admission in the pleadings, but the proofs were given on both sides as though the question were open for determination by the justice upon technically correct pleadings.
Second. The plaintiff claims that the contract between the parties as to the term of service was made in November, to commence the 1st of December following, and to extend for one year, and he so testified, and claimed the contract was therefore invalid under the statute of frauds, as being a contract not to be performed within one year from the time it was made, and that therefore, the services having been rendered without any valid contract, he could recover what they were reasonably worth, which was the amount claimed-$187.50. The defendant, however, claimed that, while there was talk about the matter in November, the contract was not in fact made until after the 1st day of December, and he and his wife so testified, and he claimed it was not, therefore, invalid under the statute. The justice having found the contract made was valid, we should not interfere with such finding.
Third. We come now to the question upon which the county judge relied in reversing the judgment of the justice, as indicated by the opinion written by him which is in the record. The justice apparently held that inasmuch as there was a contract for one year's service, and the plaintiff failed to comply with the terms thereof, but left the service [118 N.Y.S. 61] at the end of nine months, he was not permitted to recover anything for the service rendered. The county judge disagreed with this rule, and held that the true rule was that the plaintiff could recover the wages actually earned by him, less the amount the defendant would be obliged to pay in excess of the contract price for labor to supply his place for the remaining three months the contract had to run. Before considering the legal proposition referred to, we need to settle one question of fact that may be important in determining the question of law.
The defendant claimed that the contract was for the whole year's service at the agreed sum of $250, and no part of this sum was payable until the expiration of the year; while the plaintiff claimed that the contract was that he was to be paid along from time to time during the year. The plaintiff testified that the defendant was to pay right along as the year went, and when the year was finished he would be fully paid up. The defendant gave no evidence upon this point, and made no contradiction of the plaintiff's evidence with reference thereto; but it was conceded that payments were made during the nine months of actual service, so that when plaintiff quit he had been paid about one-half of the claim made for the service rendered. Under these circumstances the justice could hardly find that the agreement was that no part of the wages was payable until the expiration of the year. He must have concluded that the agreement was that payments should be made along from time to time as the services were rendered, but at no particular times and no specific amounts. This was beyond doubt the real agreement.
Now as to the law: The plaintiff alleged in his complaint that he rendered the nine months' services at the agreed price of $250 per year, and that the wages amounting to $187.50 remained unpaid, except the sum of $94.92. $250 per year would be, if equally divided, $20.83 1/3 per month, or $187.50 per nine months; but in his evidence plaintiff testified he made up the $187.50 by allowing for the first three or winter months $12.50 each, and for the remaining six months $25 per month, which makes the total the same, $187.50. It was held in Lantry v. Parks, 8 Cow. 63, where the contract was for one year's services at $10 per month and the servant left at the end of 10 1/2 months without cause, he could not recover for the service rendered; that he violated his contract; that the service was a condition precedent to the right to payment for his wages. He could not recover upon an implied assumpsit, citing and relying on cases theretofore decided. That decision was made in 1827. It was held in Peters v. Whitney, 23 Barb. 24, where the contract was for six or seven months' service and the servant left before the expiration of his term, that the legal measure of damages was the difference between the wages agreed to be paid and the price the employer was obliged to pay for labor to supply his place. This decision was made in 1856 at the Monroe General Term, but no authorities were cited or considered at all. Tipton v. Feitner, 20 N.Y. 423-429, involved a contract for the sale and delivery of pork and hogs, the pork to be delivered at once, at a certain price, and hogs at a subsequent time, at a different price; there being no agreement as to the time of payment for either. There was a delivery [118 N.Y.S. 62] of the pork, but a failure as to the hogs. It was held a recovery could be had for the pork delivered subject to recoupment of damages for failure to deliver the hogs. In the course of the opinion in that case the court referred to the cases involving contracts for services and said:
" When the party employed agreed to serve for a fixed period, *** and was to be paid by the week or month, *** the whole service must be performed in order to recover any part [citing Lantry v. Parks, above, and other cases]. These cases proceed upon the ground that the contracts were entire, in the sense that full performance of the services contracted for was by the agreement of the parties to be made before anything became payable by the employer. On this assumption the principle of law upon which a recovery was denied was perfectly plain. But suppose a contract for a year, the employer agreeing to pay the servant $10 at the end of each month, and a performance and subsequent breach by the servant; the employer being in arrears for several months. In such case I conceive that the servant should be permitted to recover, subject to a recoupment of the master's damages for the time covered by the breach.*** It is absurd to say, under such a contract, serving the last month was a condition precedent to the payment for the first.*** If parties are so incautious as to stipulate for a full performance of a contract *** as a condition to the payment of ...