51 Wis. 531 | Wis. | 1881
There is no dispute but that it was a year from the time the plaintiff began the work until he quit. Had he lost no time, he would have fully complied with his contract. It is urged, however, that whenever the plaintiff, from his own fault or necessity, lost any time, it became optional with the defendant to allow him to resume work or not, and that when he did “ choose to allow him to resume work,” then the plaintiff became bound to make up the days so lost, by working after what would have otherwise been the end of the year. In other words, it is claimed that the clause, “ agrees to pay . . . the sum of $360 for one year,” does not refer to a definite period of time, but a definite number of days of service, and that until the number of days of service were in fact rendered, either during the year or subsequently, no recovery could be had upon the contract. In support of this theory we are referred to Winn v. Southgate, 17 Vt., 355, and Lamburn v. Cruden, 2 Manning & Granger, 253.
In Winn v. Southgate the contract was that the plaintiff should labor six months for the defendant. lie commenced work May 17th, and during the term,-with the consent of the defendant, was absent on a journey sixteen days, but returned October 5 th, and continued to work until October 30 th, when he quit, being seventeen days before the end of the six months, and then insisted that his time Avas out, claiming that twenty-
In Lamburn v. Cruden the plaintiff had been engaged by the defendant at a yearly salary, payable quarterly. The last year of service expired September 29, 1837, and his salary up to that time had been duly paid. Before the expiration of the year, a misunderstanding had arisen. October 20th -the plaintiff tendered his resignation, which was accepted December 13th. In the meantime he had performed no service, except upon one occasion, and then against the assent of the defendant. The action was for services between September 29th and December 13th; but the plaintiff was nonsuited;' and the rule for a new trial was made absolute, on the ground.that the court should have submitted to the jury the question as to whether there was a new agreement.
The question there involved seems to have been foreign to the question here presented. There the subsequent services were claimed under a new agreement; here subsequent services were demanded by virtue of the old agreement. Of course it was competent for the parties in this case to have made a new agreement, whereby the plaintiff should work a certain number of days in lieu of the nine and one-half days which he had lost; but there is no claim that any such new agreement was ever made, and the question is, Oan the court expand an agreement which by its terms was limited to “ one year,” so as to require a party under it to rendei services after the expiration of the year, in lieu of certain days of service which he failed to perform during the year? No case has been cited going to that- extent, and we have no disposition to furnish one. A party contracting to labor for a limited period cannot be required, after the expiration of the period, to render additional services under such contract, without any new agreement, merely because he had lost certain days during the term.
By the Cowrt.— The judgment of the circuit court is affirmed.