Prentiss v. Ledyard

| Wis. | Jun 15, 1871

Cole, J.

As we understand the evidence in this case, the plaintiff was to be paid for his services either at the rate of $900 or $700 a year, but no definite time of service was agreed upon. The plaintiff stated in the complaint, and so testified on the trial, that the agreement was that he was to be paid at the rate of $900 a year. The defendant, in his testimony, states the contract as follows: “ After he [the plaintiff] had been in my employment some days or weeks, we had a conversation. I told him if he would serve me faithfully and would be strictly temperate, I would give him $700 per year; and after six months, if he did not drink, and served me faithfully, I would give him $900 per year.” But, as we understand this testimony of the defendant, there was no hiring for a definite period, as for a year,,for which he agreed to pay $700. But the agreement was merely, that if the plaintiff continued in the employment of the defendant, serving him faithfully, and keeping strictly temperate, he should receive for the first six months at the rate of $700 per year; and after six months he was to receive at the rate of $900 per year, providing he did not drink, and was faithful in his service. The only disagreement between the parties, is whether, while the employment continued, the plaintiff was to receive pay at the rate of $900 or $700 per year for his services. Either party, however, was at liberty to terminate the service at any time, no definite period for which the service was to continue having been agreed upon. This view renders a consideration of .the points made by the counsel for the defendant unnecessary. It is assumed as the foundation of these points, that the plaintiff agreed to work for the defendant for a definite period, or for an entire year, and that consequently it was essential that the plaintiff show a performance of the contract on his part, as a condition precedent to his bringing the action. But we think the evidence fails to show that this was the contract.

It certainly appeared that the plaintiff was not steady and faithful in his employment, and that he occasionally left his service without the consent or knowledge of tbe defendant. But the defendant received him back again into his service — although manifestly under no obligation to do so; and it is not claimed that there was any understanding, when thus received back again, that he was to be paid at any other rate than the one originally agreed upon. True, there is evidence that the plaintiff, when he came back, promised to reform; but there is nothing in the case to warrant the assumption that his compensation was to be otherwise than as first settled between them. And whether he was to receive at the rate of $900 or $700 per year while the service continued, was a question fairly submitted to the jury upon the evidence.

We therefore see no error in the case which would authorize a reversal of the judgment.

By the Court. — The judgment of the county court is affirmed.