Thorpe v. White — 13 Johns. 53

Majority

p. 53

Thorpe against White and others.

Headnote

Where there is a contract of hiring for a definite period of time, at a certain rate per day, and a part only of the time having elapsed the parties settle the amount of the wages which had been earned, and the hirer gives his no amount; in an action on the note, it is no defence that the payee had left the maker's service before the expiration of the time which he had been originally hired; although, had there been no subsequent modification of agreement he could have recovered wages until he had served the whole period agreement upon.

THIS was an action of assumpsit, which was tried at the Alba- circuit, in October; 1815, before Mr. J. Yates.

The plaintiff produced, at the trial, a promissory note,, executed by the defendants, which being admitted, the counsel for the defendants offered to prove, under the notice subjoined to the plea, that-the defendants being the owners of a eotton manufactory, the plaintiff, who was a joiner, about three months before the exeCutjon of the note, entered into their service, and it was agreed that the defendants shoúld instruct the plaintiff in the making of the machinery necessary and proper for the said , manufactory, and should pay the plaintiff at the rate of one dob iar per day for one year, for his wages in making the same ; in consideration whereof, the plaintiff agreed to work fot the defendants for one year at that rate, and it was further agreed, that the- defendants should settle with the plaintiff at the end pf every three or four months; that at the expiration of about three months from the time the agreement was entered into, the parties computed the amount then due for the plaintiff ’s services, at the stipulated rate, and the note on which the action Was brought was given for the amount; and, shortly afterwards, the plairitiff left the service of the defendants without their consent. The evidence being objected to on the part of the plaintiff, was rejected by the judge, and a verdict was given for the plaintiff.

The defendants moved for a new trial, arid the pase was submitted to the court without argument, '

According to the principles adopted by this court, iii the case of M'Millan v, Vanderlip, ( 12 Johns. Rep. 165 .,) the original contract between the parties was an entire contract; and if there had been no subsequent modification, the,, plaintiff could not have recovered upon it until the expiration, bf the year. But the giving of the nóte in question, by the defendants, was, pro tanto, a change or modification of the original agreement, and precludes them. frQm setting up thq original

p. 54

' agreement against their own note. ' The evidence .offered wás, therefore, properly overruled, and the motion for a new trial must'be denied.

Motion denied.