Vail v. Jersey Little Falls Manufacturing Co.

By the Court, Allen, J. This case is not properly before ns. Having been tried by the court without a jury, the case should have contained a separate statement of the facts found by. the justice, and his conclusions of law. (Code, § 268.) The case contains no such statement. 'But if this defect be overlooked, it will be seen that upon the merits the case is with the plaintiff. The only question is upon the construction and effect to be given to the contract of hiring, as expressed in the resolution of the defendants’ directors of the 24th November, 1857. This resolution, and the acceptance of the office and employment under it, constitutes the contract between' the parties from that time. In the spring, and about April, 1857, the plaintiff was employed as shipping agent of the defendants at the yearly salary of §1200. Although the compensation was in the form of a yearly salary, &c. the hiring might perhaps be held to be a hiring by the year, though the actual duties of the shipping agent as such were necessarily and by their nature confined in the main to the season of navigation, and in the winter of 1857-8, actually terminated about 1st January, 1858. In Nov. 1857, and while the plaintiff was acting as shipping agent, the office of secretary of the defendants became vacant, and by resolution of the directors the plaintiff was appointed to the office “ for the balance of the current year, with the understanding that he is to act as secretary and shipping agent of the company at Newark, at the rate of salary of §1200 per annum, being the same rate of salary heretofore stipulated to pay said "Vail for his services as agent for this company at Newark.” The current business year of the company expired on the 10th of January, 1858, at which time a new board of directors should have been chosen, but the election did not take place till February 24th, 'and the plaintiff continued to [567] act as secretary until the 15th of May. There is no proof of any service as shipping agent after January, 1858. The fact that for a part of the year there was nothing to he done by the plaintiff in one of the capacities in which he was employed by the defendant cannot vary the effect of the contract as made by the parties. So long as he performed the duties pertaining to his situation, at all times, so far as there were duties to be performed, and held himself ready to render all the services required of him in the proper season for their performance, the plaintiff has a right to insist upon a performance by the defendant. The year of his employment as shipping agent, if it were a hiring by the year, expired in April. And if it were a hiring so long as any thing was to be done as shipping agent in 1857, or to close up the business of that year, it terminated in January, 1858. But the employment of the secretary, although for the “ current year,” and for the reason that the board of directors could not appoint a secretary for a longer period, was at a fixed salary, and if the services continued beyond that year they were at the same rate. A continuance in the employment with the consent of the defendants after the expiration of the “ current year,” was equivalent to a new hiring upon the same terms. (Evertson v. Sawyer, 2 Wend. 507. Bradley v. Covel, 4 Cowen, 349.) It would be fair to presume from the language of the resolution and the acts of the parties that it was expected to resume the quarrying and shipping stone in the spring of 1858, and that the plaintiff would continue to act as secretary and shipping agent on and after November, 1857, and up to January, 1858; and had that been the case the plaintiff would not have been heard upon a claim beyond the salary of $1200, no matter what might have been the actual value of his services. The fact that the defendant did not continue its business cannot affect the construction of the contract, or the liabilities of the parties. The plaintiff waited till 15th May for the defendant to resume its business, which the year before commenced in April, being daily at the office of the [568] company performing the duties of secretary and ready to act as shipping agent, arid is entitled to recover after the rate agreed upon. [New York General Term, September 17, 1860. Sutherland, Bonney and Allen, Justices.] The judgment should he affirmed.