Sisk v. Cunningham

Napton, Judge, delivered ihe opinion of the Court. This was an action brought by the defendant in error against Sisk, before a justice of the peace, for work and labor done in the service of Sisk. After a verdict before the justice, in favor of the defendant in error, the case came before the Circuit Court; a new trial was had, and the plaintiff below again obtained a verdict. It appeared in evidence on the trial, that Martha Cunningham, the plaintiff, had been placed by her aunt at the house of the defendant, to live in his family so long as they were mutually satisfied with each other, and perform such services as were customary among the females of his family, with a mutual understanding that for those services she was to be instructed by the defendant’s wife in certain branches of housewifery ; receive suitable clothing, food and lodging; and when she became of age, or was married, be furnished with a good bed and such other articles of household goods as would be a reasonable compensation for her services. If she married before she became of age, then she was to receive in proportion to the time'she lived with defendant. It appeared, that the plaintiff lived with defendant about three months and a half; that, at the expiration of this time, the witness^ who was the aunt of the plaintiff,) discovering that the plaintiff had not been furnished with what she considered suitable clothing, purchased some for the plaintiff, and that defendant refused to pay for the same; whereupon plaintiff left the service of defendant, arid brought (by her next friend) this suit, to recover the price of her services. On this state of facts, the court instructed the jury, on the application of the plaintiff, that if the plaintiff worked for the defendant under a general contract, and the defendant failed or refused to comply with his part of the contract, the plaintiff had a right to quit his service on such failure or refusal;- and the value of her services was the measure of damages. And if there was a special contract, and the defendant violated it, then the plaintiff had a right to quit, and recover the value of her work. But the court -refused to instruct the jury, on (he defendant’s application, that, if the plaintiff was entitled to wages, and her wages were, by contract, to be paid in clothing or other property, the plaintiff was not entitled to judgment unless a demand of such clothing or other property v?as made, and the defendant refused tó comply with such demand. This was a contract for an indefinite time, to be terminated at the pleasure of either party, and therefore does not come within the principle laid down in Posey vs. Garth, (7 Mo. Rep., 94,) where it was held, that if a person retain a servant for a year, and the servant is prevented from fulfilling his contract by the fault of his employer, the servant is entitled to wages for the entire year. Here the engagement was determined by the marriage of the plaintiff, or her attaining the [134] age of twenty-one years; and upon the happening of either of these events, she was entitled to be paid in certain specified articles of property. But no provision was made for a case in which the contract was dissolved by the dissatisfaction of either party: in such event, if the services were discontinued without any breach of contract on the part of the employer, the servant could not recover upon a general quantum meruit. But in this case, it was clearly the duty of Sisk to furnish the minor with suitable clothing; and having failed to do so, she was entitled to recover so much as her services were worth. — 1 Durn. and East, 133. The special contract was at an end, and no demand or refusal was necessary. Judgment affirmed.