Cosgray v. New England Piano Co.

—At the beginning of the year-1892, the plaintiff, then being in the employ of the New England Piano Company, made the following contract with that corporation:

“ New York, January 2, 1892.

“New England Piano Co. of N. Y., 98 Fifth Avenue—Gentlemen : I hereby agree to devote all my time and efforts in the services of the New England Piano Co. of N. Y. from this, date until Jan. 1, 1893, in consideration of a weekly compensation of thirty dollars ($30); New England Piano Co. of N. Y. to pay all my legitimate expenses connected with their-interests. J. Gordon Cosgray.

“Accepted: New England Piano Co. of N. Y.,

“ T. J. Quin, Mgr.”'

According to his own testimony, the plaintiff, on January 1,. 1893, asked Mr. Quin, the manager of the company, for a further contract, and was told by Mr. Quin that he should continue his services for another year, at $1,800 a year. On July 7, 1893, having received only $30 a week up to that time, the plaintiff says he asked Mr. Quin for the back salary which had not been paid, and that he was requested to take a piano*

“July 7, 1893.

“The above agreement is continued in force till July 7, 1894.

“ J. Gordon Cosgray,

“New England Piano Co. of N. Y.,

“ T. J. Quin, Mgr.”

Subsequently a conversation took place between Mr. Quin and the plaintiff, in which, as the plaintiff tells us, he was assured that he should receive $240 a year “ excess of salary ” over $1,560, payable in two installments, one each six months. This would make $1,800 a year. The additional $240 per annum, however, was never paid. The plaintiff further claims that shortly after July 7, 1894, he called the attention of the new manager of the company, Mr. Dygert, to the fact that his contract had expired, and Mr. Dygert told him that a written contract was unnecessary, and that he might consider himself engaged for another year. He ivas thereafter dismissed'from the service of the defendant, on January 5, 1895, in order to lessen the expenses of the company. In the present suit he seeks to recover the difference between $1,560 a year, which he did receive, and $1,800 a year, which he claims he should have received., for the period between January 1, 1893, and the date of his discharge, and also compensation at the rate of $1,800 per annum from that date to July 7, 1895, when his employment would, in any event, have terminated.

We think there is an insuperable obstacle to the successful prosecution of the plaintiff’s claim for compensation at the rate of $1,800 a year. The written contract of January 2, 1892, terminated on January 1, 1893. Assuming that an oral agreement to pay the plaintiff $1,800 a year was made by Mr. Quin, the manager of the defendant, shortly afterwards, as the plaintiff says there was, that oral agreement came to an end on July 7, 1893, when the previous written contract of January 2, 1892, was, by the execution of the memorandum at the foot thereof, put into force again, and continued until July 7, 1894. The fact that, after the signing of this memorandum, continuing a contract which specified $30 a week as the plaintiff’s compensation, Mr. Quin told him that he should, nevertheless, receive $240 a yéar additional, cannot avail the plaintiff. There was no consideration for this alleged oral agreement. The memorandum already executed bound the plaintiff, on the one hand, to work for $30 a week, and bound the defendant, on the other hand, to employ him till July 7, 1894. As Mr. Justice Brown said in Robinson v. Jewett, 116 N. Y. 40 , 53, 26 S. R. 387, the “ performance of an act which a party is under a legal obligation to perform cannot constitute a consideration for a new contract.” The plaintiff’s obligation

Judgment and order reversed, and new trial granted, with costs to abide the event.

All concur.