8 Vt. 54 | Vt. | 1836
The opinion of the court was delivered by
The defendant having retained his full year’s pay, the plaintiffs claim to recover all or a portion of the sum retained, in consequence of the defendant not having performed the contract on his part.
The court below charged the jury, that the plaintiffs might recover of the defendant, for so much money as he had retained above his monthly stipend, for the time he was in plaintiffs’ employ, provided they found the fact that the hiring was by the month.— But they are instructed, that if the hiring was by the year, at a
The plaintiffs gave testimony tending to show that the defendant was, during the winter season, absent from their employ some three months. They are, of course, entitled to such a charge as that state of facts would require. If this was a voluntary abandonment of the contract and a wilful desertion of plaintiffs’ business, the defendant would not be entitled to any compensation for his former service and the plaintiffs should recover the entire sum retained. This results from one of the most obvious principles of the law of contracts. In all contracts for service, which are entire, full performance, on the part of the undertaker, is a condition precedent to any claim for compensation, and nothing short of such a provision in the contract, either express or implied, will enable him to recover for part performance. — 1 Swift’s Dig. 682, 683 — Cutter vs. Powell, 6. T. R. 321 — Faxon vs. Mansfield, 2 Mass. Rep. 147 — Jennings vs. Camp, 13 Johns. 94.
The testimony clearly tended to show such an abandonment of the contract on the part of the defendant, and the jury should have been instructed how far this would affect the verdict, and also how the defendant might obviate the effect of such testimony. He might show that according to the custom of the country, in such-contracts, he was entitled to the winter months, when of course, navigation is closed, to recreate and recruit. We know of no such custom, and have no doubt such is not the understanding in contracts of this class. The master of a steam boat of this character and class, is doubtless expected to collect the dues of the company and superintend the necessary repairs of the boat and machinery, during the winter season. And if he wilfully neglects to perform his duty here, it is an abandonment of the contrae!, as much as if he had deserted the boat in the season of navigation.
For this error in the charge to the jury, judgment is reversed and a new trial granted.