Seeber v. American Mining & Milling Co. — 32 N.Y. St. Rep. 1051

Majority

p. 1051

Horatio G. Seeber, Pl'ff, v. The American Mining & Milling Company, Def't.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Services — Compensation.

Plaintiff was engaged by defendant to superintend its works. Plaintiff asked five dollars a day, but was told that the company could not pay that, but would give seventy-five dollars a month and after three or four months it could pay wages. He continued his services for over a year, his pay being raised to $100 a month, all of which he drew. Held, that there was no binding contract beyond the seventy five dollars per month and that plaintiff could not recover compensation in excess of the amount received by him.

Exceptions ordered heard at general term after judgment dismissing the complaint.

Action to recover a balance alleged to be due for services under an alleged contract for $150 a month.

Thos. J. Ritch, Jr., for plTE; Andrew Butcher, for deft.

The facts proven did not entitle the plaintiff to sustain a verdict based on the evidence, and therefore the case was properly dismissed. The plaintiff is a carpenter. The defendant a domestic corporation who was about to start a business in breaking stones and mining and selling sand at Port Jefferson.

The vice-president of the company was in negotiation with the plaintiff to go to Port Jefferson, and act for the company. The plaintiff and this officer of the defendant went there to look at thd ground, and finally the question was reached what would the plaintiff go there fori

The plaintiff asked-five dollars per day. He was told that the company could not pay that now, but would give seventy-five dollars per month and some stock of the company “and after three or four months then the company could pay wages.” The plaintiff went on that basis.

There was no mention of any amount of stock of the company which was to be given in addition to the seventy-five dollars per month.

No stock was ever given, and this action has no reference to a default in that particular. There was no binding agreement beyond the seventy-five dollars per month. The words of the

p. 1052

contract do not import any. There was no time when by force of the agreement a new rate of compensation would be due under it. The plaintiff worked under it for about a year, when his rate of compensation was raised to $100 a month.

An application for an advance' was made' by plaintiff at the end of a little over five months, and none was made. There was no definite time as to the duration of the contract, and none beyond the seventy-five dollars per month, subsequently raised to $100, as to the compensation which the plaintiff was to receive thereunder. Either party could terminate the contract at pleasure. When the plaintiff took his wages under it, there remained no-liability upon defendant’s part to pay a greater sum than was paid to the plaintiff.

The action was properly dismissed, and the exception should be overruled and the defendant have judgment upon the ruling at the circuit, with the costs of this appeal.

Dykman and Pratt, JJ., concur.