Patnote v. Sanders

The opinion of the court was delivered by Peck, J. It appears that about the 29th of June, 1865, the plaintiff agreed to labor for the defendant for the term of four months thereafter, at the ordinary work performed on the farm, [71] with this further understanding that, after the hot weather was over and haying and harvesting done, the plaintiff was to go to work at chopping. After laboring a month and a half, the plaintiff left the defendant’s employ. The first question is whether the plaintiff left under such circumstances that his leaving operated as a forfeiture of his wages for the time that he labored. The auditor has not found whether the plaintiff had just cause for leaving or not, nor has he found whether or not he left by the defendant’s consent. He has stated, however, what transpired on the occasion of his leaving. The court, therefore, must necessarily make such reasonable inferences as the facts found by the auditor warrant, so far as necessary to the decision of the case. Under the contract, it was not expected that the plaintiff would be set to chopping as a constant business so early in the season as when the defendant directed him to go to chopping, on which occasion he left. The plaintiff then put his refusal to chop expressly on that ground. But there was nothing in the contract that would justify the plaintiff in his refusal, if only required to chop that day or temporarily, if the convenience of the defendant’s business required it; especially as it was not weather proper for haying, as the auditor finds. But, as we understand the report, the plaintiff supposed the defendant, by that direction, designed to have him then commence chopping as a steady business; but the auditor finds that the defendant did not so intend it. It does not appear, however, that the defendant so informed the plaintiff. There seems to have been a misunderstanding between them on this point, and it resulted in the defendant’s insisting on this direction, and the plaintiff’s telling him he should leave. But it is not necessary to say whether the plaintiff was justified in quitting the defendant’s employment, except in reference to the amount of his compensation, because, whether he was justified or not, we think it-resulted in the defendant’s assenting to it. If the defendant had been desirous to have the plaintiff remain, he probably would have explained to him that the chopping on that occasion was designed to be only temporary. But the report showsfthat, after the plaintiff said he should quit, the defendant proposed to settle with him and pay him something for his [72] work; but the auditor says lie did not admit that he was holdenby the contract to do so. The auditor does not say that the defendant insisted to the plaintiff, that he was not liable, but only that he did not admit his liability. The auditor then adds: “ No settlement was agreed upon and nothing was paid, but the defendant offered to pay for one month and a half, if the plaintiff would receive it." This, we must intend, was an offer to pay at the contract price. This is sufficient evidence that the defendant assented to and acquiesced in the plaintiff’s leaving. If so, it is a waiver of the forfeiture of the wages for the services performed ; especially as the offer was to pay for the whole service rendered. But even if the plaintiff did not leave by the defendant’s consent, the offer to pay for the whole service at the contract price, is a waiver of the forfeiture. So is the tender to Wilson, the plaintiff’s attorney. It is true that to Wilson he tendered but $27.50, but the case shows that he intended to tender $37.50, and supposed he did so, but made a mistake in the amount. This is just as strong evidence of an intent not to insist on the forfeiture, as if he had tendered the $37.50, as he supposed at the time that he did tender. It is insisted on the part of the defense, that this tender can have no such effect upon the defendant’s right to insist on the forfeiture, because, in the previous interview between the defendant and Wilson, when the defendant offered to pay for one and a half month’s wages at the contract price, which is just $37.50, and Wilson told him he would advise the plaintiff to take it, he accompanied the offer by a claim on his part that he was not liable. What effect that might have upon that offer in reference to this question, it is not necessary to decide, as no such claim accompanied the subsequent tender. Seaver v. Morse, 20 Vt., 620, and Cahill v. Patterson, 30 Vt., 592, in principle are decisive of this question. The question then is, what is the rule of compensation which shall govern ? The plaintiff claims to recover on a quantum meruit independent of the contract. On this basis, the auditor finds the plaintiff would be entitled to recover more than the contract price, and fixes the amount. Whether the auditor bases Ms finding on the ground that the labor for the whole four months was [73] worth more than the stipulated price, or on the ground that the plaintiff labored that portion of the time when his services were the most valuable, he does not tell us. The plaintiff is not entitled to recover more than the contract price, in any view of the. case, unless the facts show that he had good cause for leaving; and this we can not say, from the facts reported. The plaintiff, having left voluntarily, although by the.consent and acquiescence of the defendant, can recover only pro rata on the basis of the contract price. Nor is the defendant entitled to a deduction of the five dollars damages which the report shows he sustained by reason •of the plaintiff’s leaving his employ. It is insisted by the defendant, that, upon the facts reported in .relation to the tender of the 127.50, and which the attorney received, the plaintiff is entitled to stand in no better condition than if the $37.50 had been tendered and received. But the mistake in the sum must be regarded as the mistake and misfortune of the defendant. There is nothing in this that can change the legal .rights of the parties. There is no legal ground upon which we can say that the plaintiff shall account for the $10, which he has not received, and which the defendant still retains. The judgment of the county court for the plaintiff is reversed, and judgment for the plaintiff for $10 damages, and interest on ■.that sum from the commencement of the suit.