Natalizzio v. Valentino

The opinion of the court was delivered by Reed, J. The employment of the appellee and plaintiff being for a month at a fixed sum, he having abandoned the service, without any excuse whatever, before the end of the term, he was not entitled to receive anything under his con [502] tract. Beach v. Mullin, 5 Vroom 343; Mather v. Brokaw, 14 Id. 587. The servant was permitted to recover on the ground that the contract for a monthly hiring had been rescinded by the parties, and thereby the plaintiff was remitted to a-right to sue upon an implied contract for the value of his services. It is to be observed that the new contract was for a week only, and this week was within the unexpired period of service under the original contract. It is to be further remarked that, so far as appears, nothing was said concerning the rescission of the original contract at the time the plaintiff was re-employed. It would seem, therefore, that the new arrangement was intended to pay increased, wages for the same kind of service as the plaintiff was already bound to render. The last hiring would therefore seem to lack a consideration to support it. Harris v. Carter, 3 E. & B. 559; Hart v. Lauman, 29 Barb. 410. But, conceding that the second contract was valid, and conceding that it worked a rescission of the first hiring, it does not follow, as a legal conclusion, that the plaintiff can recover for his original services upon an implied assumpsit. Thomas v. Williams, 1 Ad. & E. 685; Lamburn v. Cruden, 2 Man. & G. 253. Where the abandonment of a contract for services to be performed as a condition precedent to payment is caused by the fault of the employer, doubtless the servant can, ds one of his remedies, resort to his action upon a quantum meruit. But when the abandonment of the contract is the result of a mutual agreement, the right to recover for services already rendered depends upon an express or implied contract that payment for such services shall be made. Lamburn v. Cruden, supra. A promise to pay for services rendered under an abandoned contract must be supported by a consideration. Rice v. Dwight Manufacturing Co., 2 Cush. 80. In the present case, if such a promise is to be implied, it must rest upon the consideration that the plaintiff was to perform the substituted' agreement. [503] In consideration of his returning to work, and working for at least a week, he was to receive $12, and be paid for his services already rendered under the old agreement. As appears from the case stated, the plaintiff did not work for a week. He did not become entitled to any part of the week’s wages, nor to any other part of the consideration, including the wages sued for. It is to be observed, also, that if the defendant made the express promise tó pay which seems to have been sworn to by the plaintiff on the trial, the truth or untruth of which is not found by the District Court, the same difficulty would confront the plaintiff, namely, failure of the consideration for which the promise was made. The judgment should be reversed.