Nickerson v. Russell

Barker, J. The hiring of the plaintiff for the year 1897 by the firm was a joint hiring by the individuals who composed the firm; and as the business was not closed by the voluntary dissolution of the firm, and was continued in the same manner and at the same place, the dissolution did not end the plaintiff’s employment for the year. Hughes v. Gross, 166 Mass. 61. That employment continuing, the plaintiff remained bound to do the same things in reference to the business which was still carried on, and the defendants remained jointly bound to pay him therefor. Therefore his remaining at work after the dissolution, although he knew that the retiring partners had withdrawn, and that but one of the three members was continuing the business, and his receiving from that member the weekly compensation which the three had agreed the plaintiff should have from the three jointly cannot be said, as matter of law, to have been a surrender or abandonment by the plaintiff of his joint contract with the three defendants, or the making by him of a new contract with the one who continued to carry on the business. For these reasons, the instructions requested by the defendants were rightly refused, and those given, which left to the jury the question whether upon the dissolution there was a mutual understanding that the old contract should be considered at an end, were at least sufficiently favorable to the defendants. The same considerations show the fallacy of the defendants’ arguments that the plaintiff’s remaining at work and accepting pay from that one of his employers who continued to carry on the business was in law an assent on 590 the plaintiff’s part to the assumption of all liability as to the plaintiff by the one who continued the business, and that thereafter there was merely a contract between those two, and terminable at the will of either. The exception to the admission of the testimony as to the statements of the defendant Gage must be overruled. The date of that conversation could be found to have been either in December, 1894, or in January, 1895. If at the later date, Gage was a partner, and his statements were admissible as against all the defendants; if at the earlier date, his statements were at least admissible against himself. It does not appear tha't the court refused to limit the éffect of the evidence, if the jury should find that the statement was made before Gage became a partner. The objections that the action was prematurely brought, and that the rule of damages was wrongly stated, are not now insisted upon. Exceptions overruled.