Davis v. Gorton — 16 N.Y. 255

Majority

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Davis v. Gorton, Administrator, &c.

Headnote

Where services in the management of a farm and household are performed under a general retainer, without any express agreement as to the time or measure of compensation or the term of employment, and such services continue for a series of years, no payments being made, the law, for the purpose of determining when the statute of limitation begins to run, will not imply an agreement that the payment of compensation shall be postponed until the termination of the employment, but will regard the hiring as from year to year, and the wages as payable\t the same time.

Whether a hiring from month to month, with monthly payment of wages, may not be implied from the usage in similar employments, guere.

Appeal from the Supreme Court. The plaintiff commenced this action on the 27th January, 1853, to recover for work and labor, performed by himself and his wife, in the management of the farm, business and affairs of James Moore (of whose estate the defendant was administrator), and averred such services to be reasonably worth the sum of $1715. The defendant pleaded the statute of limitations. The action was referred. On the trial, it was proved that the plaintiff married Emily, the daughter of Moore, the intestate, in 1834; at the request of her father, Emily and her husband, the plaintiff, came and boarded in the family, of Moore, performing services, in the management of the farm and household, from and after January, 1835. The referees found, as conclusions of fact, that Emily Davis performed labor and services for the intestate, and at his request, "from January 1, 1835, until September 1, 1846, “and that her services were reasonably worth the sum of $450; that the plaintiff performed services for the intestate from January 1,1842, till May 1,1848, and that his services were reasonably worth the sum of $684; that such services were performed by the plaintiff and his wife under a general employment, continued without interruption, respectively, up to the dates aforesaid, and that no time was fixed for the

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termination of such employment or for the payment therefor. They found, as a conclusion of law, that no part of the plaintiff’s demand was barred by the statute of limitations, and that he was entitled to judgment for $1134. The judgment entered upon their report was affirmed by the Supreme Court, at general term in the fourth district, and the defendant appealed to this court.

Sidney T. Fairchild, for the appellant.

Charles B. SedgwicJc, for the respondent.

The recovery has been had, in this case, upon the ground of work, labor and services, performed at the request of the intestate, whom the defendant represents, by the plaintiff and by his wife. The referees have found that no time was fixed for the termination of the employment nor for the payment therefor, and that the services in question were rendered under a general employment and retainer, and that they were continued without interruption from their commencement to their termination, a period of over thirteen years. Under these circumstances, the question is presented, whether the referees have correctly decided that, as matter of law, the statute of limitations did not begin to run until the termination of the service.

The referees have not found that these services were performed upon a contract that they should be paid for after Moore’s death, in case he did not provide by will for the compensation of the parties who rendered them, but they are placed upon the mere ground of services to be paid for ‘ at their value, without any express agreement as to the time or measure of compensation or the term of employment. The law will not, I think, intend, in respect to- a permanent and continuous employment, an agreement, as to compensation, so unusual in its character, and so little conducive to the interests of either party to it, as that the

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payment of any compensation shall be postponed until the termination of the employment. The case strongly resembles those of the hiring of clerks, servants in husbandly, and other similar employments, in which, to avoid the inconvenience above alluded to, and to give each party the benefit of all the seasons during the year, an indefinite hiring is taken to be a hiring for a year, or from year to year, the compensation payable at the same tune. (Rex v. Macclesfield, 3 Term R., 76; Baxter v. Nurse, 1 Car. & Kir., 10.) This rule is at least as favorable to the claim of these parties as the facts call for, and the referees, therefore, erred in their decision upon the point in question. It may be that even monthly payments would be more in accordance with the usual terms of such employments.

Shankland, J., dissented; all the other judges concurring,

Judgment reversed and new trial ordered