Cany v. Halleck

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action to recover compensation for alleged extra services rendered by plaintiff to J. L. Folsom, deceased, in his lifetime. The plaintiff was employed and paid by the deceased a stipulated salary per month for services as collector of rents. .The defendant had judgment in the Court below, and the plaintiff appealed. On the trial the Court instructed the jury as follows: “That if the plaintiff was under a regular monthly salary front Folsom, during the time the services now claimed for were performed, that it was a presumption of law that all the services he performed during said period, whether ordinary or extraordinary, were paid for by said salary, and to overcome this presumption plaintiff must show an express agreement for extra pay, otherwise he can not recover.” The learned counsel for plaintiff insists that this instruction was erroneous in requiring proof of an express agreement, when proof of an implied agreement would have been sufficient. In support of his objection we are referred to Smith’s Master and Servant, pages 101-2. “ Upon similar principles it is equally clear,” says the author, “that where a stipulated remuneration has been agreed upon, the servant has no claim to additional remuneration, on the mere ground of his performance of additional services; unless he can [202] prove some contract, either express or implied, on the part of his master to pay him an increased salary for his additional services, he can recover no remuneration for them.” In support of the text, the author refers to the case of Bell and Drummond, (Peake, 45.) In that case it was “proved that the plaintiff having demanded an additional stipend, the testator had desired the witness (as a friend of both parties) to consider what ought to be allowed the plaintiff. That accordingly the witness did proceed to make an estimate, but before he had finally made up his mind the testator died.” In that case Lord Kenyon placed his decision upon the express ground that “it appeared clearly that the testator himself thought that he ought to pay something, and the only matter in controversy between him and the plaintiff was the quantum of the additional allowance.” Here the parties had conferred together as to the right of the servant to extra wages, which right was expressly admitted by the master, and the matter as to the quantum alone referred-to a mutual friend. But in the present case there is no pr'oof that the testator ever admitted that he was bound to pay an additional sum to plaintiff for these extra services. He said, upon several occasions, that they were very important and valuable, and that he felt very grateful for them. But he never spoke of payiny for them as extra services, or admitted that he was liable to pay anything. Most of these extra services were of such a character that a Court of Justice would not enforce a contract for compensation. And as to the other portion of these alleged extra services, they were of a nature so nearly similar to the regular duties of the plaintiff, that an express contract to pay for them should have been proved, to enable the plaintiff to recover. The language of the instruction may have been too broad, if found in a legal treatise upon the general subject of extra services ; but, as applied to the peculiar circumstances of the case before the jury, the instruction was right. The facts proved did not entitle the plaintiff to recover, and substantial justice seems to have been done. The plaintiff was slow in urging his claim upon the testator in his lifetime, and ye cannot disturb the verdict of the jury. Judgment affirmed.