Solomon Thayer versus David Wadsworth et al., 19 Pick. 349

Dewet J. delivered the opinion of the Court. The plaintiff, on the trial of this cause, offered evidence to prove, that he had labored for the defendants from about the first of May 1836, to the latter part of August following, in the business of spinning. Having thus shown the performance of services beneficial to the defendants, and done with their knowledge, the law raises the promise set forth in the declaration, that the defendants would pay to the plaintiff what those services were reasonably worth.

The defendants resisted this claim, alleging that there was a special contract between the parties, by which it was agreed that the plaintiff should continue in the employment of the defendants until the 1st of April, 1837, which contract was violated by the plaintiff, in leaving their service in August 1836, without any justifiable cause ; placing the defence upon the general principles of Stark v.

Parker, 2 Pick. 267, where it was held, that if a person entering into a contract for service for a certain term, at a stated price for the whole term, should voluntarily leave that service before the expiration of that term, without any justifiable cause, he could maintain no action to recover a compensation for any services actually performed under the contract. The legal principles of that case are undoubtedly correct, but care should be taken to apply them to cases depending upon similar facts, or those substantially analogous to them.

In the present case it will be remembered, that the defendants assume to establish the special contract. This contract (so far as it was proved by them) was a contract by the plaintiff to labor for the defendants until the 1st of April then next, at an agreed price by the yard for the spinning done by him. There was no proof of the terms of the contract by any one who was present at the making of it, but whatever we learn of its provisions comes from the declarations of the plaintiff, made in incidental conversations, not naturally giving occasion to speak of the terms of payment.

The defendants contend that the facts thus shown, establishing the service to be for a certain time, accompanied with the evidence that the plaintiff left without cause before the expiration of the term, were, in law, a good bar to the action. The plaintiff denies that the special contract, as proved, fur nishes any bar to his claim, and assigns two reasons 1.

That the plaintiff was not properly supplied with work by the defendants ; that he was out of employ parts of several days, one of which was near the time he left; and he offered to show, that be complained of this to other workmen, but not to the defendants.

On this point the judge ruled, that the defendants were bound to furnish a reasonable supply of work ; but, that if they failed to do so at any time, and the plaintiff continued to work afterwards, it would be a waiver on his part, of a right to put an end to the contract, if the jury thought the length of time he continued to work after such deficiency, was such as to warrant them to infer such a waiver ; but that this was a question entirely for them.

It was also left to the jury to infer, if they thought the evidence sufficient for that purpose, that the plaintiff not saying when he left, that he left on account of deficiency of work, (as it appeared by the evidence, that he did not,) was a waiver of such deficiencies of work as happened a short time before he left. This ruling seems to us to have been correct. It is only an application of the well settled principles of waiver of the benefits which one party may have, of avoiding a contract, arising from the loches of the other party.

After such loches are known to him, the party affected by them is not allowed to treat the contract as a subsisting one, and to continue to receive substantial benefits under it. and subsequently to set up those loches as an excuse for his own neglect to perform future duties by him agreed to be performed. ' 2.

But the plaintiff would also avoid the bar set up by the defendants as arising from the alleged special contract, upon the ground, that the payment for his services was not, by that contract, to be postponed until the completion of the term of of service ; and contended, that if it was left to the jury to find whether there was a special contract, it should be left to them to find what were the terms of the special contract as to the times of payment, and that they might take into consideration, among other things, the conduct of the parties, and, particularly a payment made by the defendants to the plaintiff, on the 1st day of July, 1836, in determining the terms of the contract in reference to the tiznes of payment, the plaintiff claiming, that the performance of the service for the entire term was not a condition precedent to his recovery for the services he actually performed.

The judge ruled, that on the point of a special contract, the burden of proof was on the defendants ; that if it was for a certain time, the law implied the promise to pay at the expiration of that time ; and that if they found, that there was a contract to work until the 1st of April, at an agreed price, the verdict must be for the defendants. We apprehend, that this instruction of the judge, in its application to the plaintiff, was erroneous.

The contract is treated as one explicit in its terms, as to the tiznes of payment; and all evidence was excluded, which the plaintiff would offer for zhe consideration of the jury as raising a presumption of the time of payment being other than at the expiration of the term of service.

It will be remembered, that the special contract as proved by the defendants, was silent as to the times of payment; and although a contract for services to be performed within a short period, would, in the absence of all explanatory proof, be prima, facie, a contract to pay at the expiration of the term of service, yet this is a mere presumption as to the time of payment, to be submitted to the jury, which may be rebutted by any evidence from which the jury may lawfully infer a different arrangement between the parties.

It is a case where the presumption is to be drawn from all the facts and circumstances having a bearing upon the question. Inasmuch as neither party proved any express contract as to the time of payment, it seems clear to us, that the plaintiff might submit to the jury any proper facts and circumstances on this point, from which, in connexion with the evidence of the defendants, the jury must draw their own inference as to tile time when payment was to be made for the services to be rendered by the plaintiff to the defendants.

The ruling of the judge being erroneous on this point, the exceptions are sustained and a new trial ordered.