Odell v. Webendorfer

64 N.Y.S. 451 | N.Y. App. Div. | 1900

Hirschberg, J.:

The plaintiff alleges that he was hired by the defendant on April 1, 1898, to work his farm for one year and to furnish an additional man, for which he was to be paid sixty dollars a month, and to receive house rent, a horse once a week, four quarts of milk per day,' potatoes, apples and stable room. He claims that he was unlawfully discharged December 1, 1898, and sues for his money wages during the remainder of the term, and for the value of the “ privileges.” The defendant denied that the hiring was for a year, alleged that the discharge was for adequate cause, and pleaded the Statute of Frauds.

The agreement for hiring, as stated by the plaintiff, was oral, and was made in the middle of March, 1898, for a year, to commence April 1, 1898. The plaintiff claims that the agreement was renewed April 1, 18-98, but his evidence would seem to be limited to proof that its terms were merely restated, and that no new contract was actually entered into on that day. He said on direct examination : “ Q. Was this talk the first of April ? A. We were mentioning over what it was already understood. Q. What was the talk ? A. That was it. Q. Did you have a similar talk with him before ? A. I did. Q. What was the occasion of your speaking to him that day ? A.' After I made the arrangements with Mr. Webendorfer to work for him, I heard that he didn’t always stand up to his agreements, and I thought to make myself safe I would repeat it there on the first day of April, and have an understanding.” • On cross-examination he said : “ Q. So that when it came the fii’st of April you had no agreement to make with Mr. Webendorfer at all ? A. Only to repeat the bargain. Q. Answer the question. Did you have any' further agreement with him, did you have any further agreement or contract on the first day of April ? A. I didn’t presume it was necessary, but as I say, as I heard Mr. Webendorfer didn’t always stand up to his agreements, 1 thought that it was necessary for me to repeat the contract, and see if it was satisfactory. Q. On the first day of April you talked over your previous contract? A. Yes, sir. . Q. You made no new contract ? A. No, sir, just the previous bargain.”

By the plaintiff’s own showing the contract was not made on the first of April, y No contract was-made that day, but only the terms of the prior contract were restated by either him or the defendant, for the sake of certainty as to the mutual obligations. What was actually said on the first of April does not appear in the case at all. This is -not sufficient to take the case out of the operation of the statute. A new contract then made is requisite; that is, the former contract should then be expressly renewed or the employer cannot be held bound. (Oddy v. James, 48 N. Y 685 ; Berrien v. Southack, 26 N. Y. St. Repr. 932; Billington v. Cahill, 51 Hun, 132.)

It was error also to permit the jury to include the “ privileges ” ' in the assessment of damages. The plaintiff made no proof whatever as to the money value of the privileges, and there was, therefore, nothing in the case on which the damages created by their loss could be estimated.

The judgment and order should be reversed and a new trial granted.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.