Norfolk Hosiery & Underwear Mills Co. v. Westheimer
121 Va. 130
Va. Ct. App.
1917
Check Treatment
Sims, J.,

after making the foregoing statement, delivered the opinion of the court .

1. This is a case of a contract of employment by the year, to be performed within the year. It being a holding over and a continuance of a preceding employment by the year, without any notice either from employer to employee, or from the latter to the former, before the beginning of the new employment, of any proposed change in the terms of the preceding employment, the contract of such new employment is implied in law to have been of the same terms as those of the preceding employment — that is to say, the amount of the guaranteed salary of plaintiff for the year 1915 was $2,400.00 (Conrad v. Ellison-Harvey Co., 120 Va. 458, 91 S. E. 763).

The plaintiff having furnished a valuable consideration to bind such new contract of employment by entering upon the performance thereof, the defendant could not thereafter’ change any of said terms without the assent of the plaintiff, that is, without a meeting of the minds of the plaintiff and defendant on a different contract. Whether there was such assent and different later contract the jury have decided in the negative on conflicting evidence, as above stated, and their verdict under the well settled rule on the subject is conclusive upon us.

2. As to the effect of the endorsement and use by plaintiff of the check of July 9, 1915, containing the entry on its, face “in full to July 1, 1915,” which is urged as barring the plaintiff’s right of recovery.

This was prima, facie evidence that such payment was in full of plaintiff’s salary to July 1, 1915.

But it was prima facie evidence only of such fact. Plaintiff was at liberty, notwithstanding his acceptance and use of such check, to prove the correct status of the account between him and the defendant. The acceptance and use of such check merely placed this burden of proof upon the *136plaintiff. He has sustained such burden in the instant case by his testimony showing what the contract of employment of him by defendant was for the year 1915, and how much it in fact paid him thereon; which testimony the jury have accepted as true, and which showed that the entry, “in full to July 1,1915,” on said check was incorrect.

3. Another position urged by counsel for defendant is that the acceptance by the plaintiff of the payments made him accompanied by the statements of account contained in the remittance statements, gave to these statements the effect of making them prima facie evidence of their correctness ; and a number of cases of employment by the month, where the employee signed receipt in full for the monthly salary, are cited as sustaining such position.

It is unnecessary for us to consider whether this position is well taken, for the reason that, if the acceptance of the payments made him were considered as making the said statements prima facie evidence of their correctness, the testimony of the plaintiff was ample to rebut and overturn such prima facie case; and the credibility of such testimony was for the jury.

4. The remaining position urged in bar of the plaintiff’s recovery is, that he is estopped from drawing a larger salary per month than that shown to be due him by said remittance statements, by his acceptance of the payments made him accompanied by such statements.

This position could be maintained only in the event that the defendant was misled thereby to its prejudice, in that it was thus led to continue the employment of plaintiff beyond the term it was legally bound to continue it.

We have seen that this was not true in the case at bar, hence this position is untenable.

The following cases are relied on as sustaining such position.

Philadelphia & B. C. R. Co. v. United States, 103 U. S. 703, 26 L. Ed. 454. In that case a railroad company con*137tracted to carry the mails over a route which included another railroad, and the latter road performed part of the' service, and brought an action against the Government for such service: Held: That having stood by contentedly and seen the money, which' it now claims, paid to the other company and received and receipted for the money paid it on that foundation, it would be inequitable to permit it now to recover and thus make the Government pay twice. ”

Clearly a very different case from that at bar.

In Moller v. J. L. Gates Land Co., 119 Wis. 548, 97 N. W. 174, there had never been an employment by the year, but for an indeterminate period. The employee rendered statements from time to time during his employment in all respects in accordance with his theory that under the contract he was entitled to a salary of $100.00 per month and expenses, and the employer for eighteen months failed to object to the employee’s view of the contract, “while encouraging him to continue in the performance of his duties under it.” Held: The employer was estopped from changing his attitude on the contract to the employee’s prejudice.

In the case last cited the period of employment was uncertain. In the case at bar the period was certain. The distinction between the cases is manifest.

In Taylor v. Butters, etc., Co., 103 Mich. 1, 61 N. W. 5, there was a sale of slabs, edgings, etc., trimmed from lumber cut at plaintiff's mill at a specified price per cord — the contract not specifying the length of the material, but that it was to be piled in condition for measurement on scows alongside defendant’s mill dock and then measured. The defendant was to pay monthly for the material received; that both parties measured it; and that defendant sent statements monthly of the measurements and a check for the amount thereby shown to be due (per syllabus). Held: “That the court properly charged that if plaintiff received such statements and checks without objection and remained *138silent for any considerable time, he would be estopped from afterwards questioning the measurements, in the absence of fraud and mutual mistake.”

This decision rests on the principle that the parties were bound by a mutual adjustment of matters of account between them and that there was an account stated between them embodying such result — an accord and satisfaction— and has no bearing upon the case at bar.

For the foregoing reasons we find no error in the judgment complained of and it will be affirmed.

Affirmed.