Merrill v. Fish

TAFT, J. The plaintiff agreed to work for the defendant one year, beginning November 15, 1894, for one hundred and sixty-five dollars; the defendant agreed to pay him from time to time as he could. The plaintiff aban [477] doned the defendant’s service June 25, 1895, and about the first day of July following demanded the amount he claimed was due him under the contract. The defendant in response to the demand wrote him that he would not pay him any more until the year of the hiring had expired. We construe this as a promise to pay at that time at the contract price. This is sufficient evidence that the defendant assented to the plaintiff’s leaving. An offer to pay for services performed at the contract price, in case the laborer has left the employer’s service, is a waiver of the forfeiture of the wages, if there was one. In such case, the laborer recovers for his services pro rata. Rogers v. Steele, 24 Vt. 513 ; Patnote v. Sanders, 41 Vt. 66; Boyle v. Parker, 46 Vt. 343. The defendant consenting to a termination of the contract the plaintiff is entitled to recover according to the terms of the contract. The defendant was to pay as he could. It appears by the exceptions that prior to the bringing of the suit, the defendant could pay; the plaintiff is entitled to recover the amount due him under the contract, with interest since the date of the writ, viz., twenty-nine dollars. Judgment reversed and jiidgment for the plaintiff.