Oliver v. McArthur

Kellogg, J.: Plaintiff worked for the defendant eight months, from February first to October first, and he was concededly under contract to work for eight months. The plaintiff swears that the contract term began February first. Defendant swears it began March first. It is clear the plaintiff was to receive twenty dollars a month for February, March and April, and twenty-five dollars per month for the remainder of the time. From time to time while the services were being rendered the defendant paid the plaintiff on account of his services various sums, aggregating seventy-five dollars, and by the judgment appealed from plaintiff has recovered the balance. There was a question of fact whether the contract term began February first or March first, although it is conceded that the plaintiff did work for the defendant during the month of February. It is evident that there might easily have been a misunderstanding as to just when the eight months’ term began. While the price was fixed for monthly service, the contract in express terms does not state that the wages are to be paid monthly; neither does it state that they are not to be paid until the end of the term. A farm hand is not a capitalist, and usually requires money from time to time, and is fortunate if his wages have not been drawn and expended at the expiration of his term. The con [243] duct of the parties is a very material circumstance to determine what the contract was. In fact the contract is made up of the intention of the parties as expressed by the language used and the circumstances under which the employment was made and the services rendered. Clearly the laborer must be clothed, and must have some spending money during the term. Mernagh v. Nichols (132 App. Div. 509) is nearly on all fours with this case. In that case the agreed price was two hundred and fifty dollars per year and the servant quit before the year had expired. From time to time while the services were being rendered payments were made, the plaintiff having received about one-half of the wages earned at the time he left service. The plaintiff swore that the defendant was to pay from time to time during the year. In this case the defendant did pay from time to time during the year, indicating clearly that that was the intention of the parties. The judge, in .substance, charged that the contract was severable and that it did not require the performance of the entire eight months of service before payments were due, but that if the plaintiff had quit before the services were fully rendered the defendant was entitled to counterclaim any damages he had sustained. The rule seems to be just. A contract with a domestic servant to work for a year at four dollars a week does not mean, and cannot be understood to mean, that the servant is to receive nothing until the year is up. The servant is working because she wants the money to use. Payments from time to time must be fairly within the contemplation of the parties making a contract for farm labor. I favor an affirmance. All concurred, except Smith, P. J., dissenting in opinion in which Woodward, J., concurred.