Posner v. Seder

Hammond, J. Under the contract the defendants were to employ the plaintiff for one year and pay him for his services $17 a week, “ the same to be paid at the end of each and every week.” The plaintiff was to report at the shop for duty at 6.30 A. M. and remain there on duty until 6 p. M., with the exception [333] of the hour between noon and 1 P. M\, and was “ also, without extra pay, to work overtime at said shop . . . not more than two hours in one day and not more than two months in the aggregate for the year.” The defendants broke the contract by the discharge of the plaintiff. In. such a case the innocent party may either sue on the contract for damages for the breach, or, if he so elects, he may regard the action of the defendants as indicating a purpose on their part to repudiate the contract, may accept the repudiation and recover upon a quantum meruit the value of his services as if the special contract had not existed. Brown v. Woodbury, 183 Mass. 279. In this case the. plaintiff has sued upon a quantum meruit for the value of only a part of the services, namely, for those rendered in the extra hours named in the contract. The plaintiff contends that the $17 which he received each week was payment for only the time between 6.30 A. m. and 6 P. M. and not for the extra time; and that therefore he may upon breach of the contract appropriate the weekly sum to the payment of the services during the regular hours, and recover on quantum meruit for the extra time. The defendants on the contrary contend that the $17 was a payment for the services of the week whatever they were, and therefore that the plaintiff has been fully paid and so cannot recover. Neither view seems to us correct. The contract was to continue a year. The weekly hours of labor were variable, and it is fair to assume that there would be a weekly variation in the value of the services. The contract is to be taken as a whole. On the one hand, the defendants could not hold the plaintiff to the work during the extra hours in any week for the sum of $17 except in connection with the other part of the contract, namely, that they were to pay him $17 in other weeks when there was no extra time; nor on the other hand could the plaintiff hold the defendants to the payment of $17 for a week in which he did not work extra time except in connection with the other part of the contract, namely, that in any week in which he did work extra time he should receive only $17. The true construction of the contract is that it was a hiring for a year, payments to be made by weekly instalments, without reference to the weekly variation in the amount of work done. Since the payments were [334] made during the existence of the contract, they cannot be considered as having no reference to the other parts of the contract. If the plaintiff desires to proceed upon the theory that the contract has been repudiated, his proper course is to proceed upon quantum meruit for the value of all his services less what he has received. If he has been paid what they are worth, he can recover nothing; if he has not, he may recover the balance due him. But it is plain that the sum due him is not necessarily the fair price for the extra hours in addition to the sum of $17 per week which he has received. He cannot appropriate the $17 to the payment of the ordinary week’s work and sue only for the balance, because, for the reasons above stated, that is not in accordance with the contract under which the payment was made. Upon quantum meruit the question is what are his whole services fairly worth, and is there anything due him. Manifestly, under a contract like this, that may be an entirely different sum from the market value of the services during the extra hours. The case of Clark v. Manchester, 51 N. H. 594, is a good illustration of the principles applicable to a case like this. The second and fifth instructions should have been given in substance. The other instructions were rightly refused. It is not necessary that the plaintiff before bringing his action should return what he has received. It is necessary only that the amount received should be credited upon his claim. Brown v. Woodbury, ubi supra. Exceptions sustained.