Grand Trunk Railway Co. v. Nichol

Graves J. In the fall of 1861, Nichol, the defendant in error, was in the service of the company as station agent at Port Huron, and was receiving $60 per month. While thus engaged, he was requested by two agents of the company, Bailey and Christie, to take charge of the Sarnia station also, and complied. Neither Bailey nor Christie had or pretended to possess any authority to fix or change the salaries of station agents, and their want of power in this respect was well known to Nichol. When it was proposed to him to act at Sarnia as well as Port Huron, some conversation took place respecting an enlargement of his salary, but nothing definite was said about it, nor did any one assume to guarantee any change in his compensation. Nnder these circumstances, Nichol proceeded to act as agent for Sarnia as well as Port Huron, without any stipulation beforehand for an increase of pay. He con179 tinned, however, to agitate the subject of enlarging his salary, and obtained the intercession of Bailey and Christie; and finally the company, in January, 1862, raised his wages $6.66 per month. After this change of wages and for about ten months, at the end of which time he was discharged by the company, the defendant in error regularly made out and receipted his monthly pay roll, in which he charged the company $66.66 for his month’s services at both stations, one half for each, and receipted the same. After his discharge he sued the company to recover an additional compensation for his ten months’ service, and obtained judgment for $596.62 and the company now seek a reversal of that judgment. There are but two points in the case. On the trial, the counsel for Nichol.asked the latter, while testifying in his own behalf what the agent, Christie, said to him about taking the Sarnia Station, which was objected to as calling for hearsay testimony, but the objection was overruled, and this presents the first question. When this ruling was made, Nichol had testified that Christie, at the time of the conversation referred to, was an officer of the road, but it had not been shown in any way that his agency extended to those affairs to which the talk inquired about, related. Subsequently, it was conclusively established by the 'testimony of Nichol and Jamieson, that Christie had nothing to do with the adjustment of the salaries of station agents. It seems, therefore, that the question was open to the objection made to it, and should have been disallowed. After the evidence had been given, the Court was requested, by the counsel for the company, to instruct the jury that the testimony failed to make a case of liability against the defendants within the issue, and that the verdict must be for the defendants. [180] The refusal to give this instruction presents the second, and only remaining question in the case. It appears by the record that all the evidence given on the trial is embodied in the bill of exceptions, and an inspection of that evidence is sufficient to show that there was nothing whatever to prove that an express contract was made with the company for any greater compensation than Nichol received. While there was no testimony tending to prove an express engagement, the evidence, in so far from justifying an inference that the company were to pay anything beyond $66.66 per month, actually repels such an inference, and emphatically excludes the idea of an implied contract for additional wages. Being in the service of the company for a fixed compensation, his duties were enlarged and he asked for an increase of pay and obtained it. He continued at work thereafter until dismissed by the company, and every month stated his demand according to the increased rate, and, on getting the money,' receipted the claim. He may have beguiled himself with an expectation of further compensation, but there was no ground for anything more. substantial than an expectation according to this evidence. As there seems to have been no conflicting evidence, nor any dispute as 'to what actually occurred, and no view which the jury were at liberty to take, could have supported the case of the plaintiff, I think there was error in refusing to charge as requested, and that the judgment should be reversed, with costs. The other Justices concurred.