
    
      John D. Craig vs. Frederick L. J. Pride.
    
    1. Plaintiff and defendant entered into a covenant, in which it was stipulated, that the former should, in all respects, discharge the duties of an overseer, and obey the defendant’s instructions; and for his-year’s services, was to receive a fixed compensation; but if defendant-had cause to turn him off before the end of the year, he was to be at ■ liberty to do so, on giving to plaintiff “ his (defendant’s) obligation for the time he served, payable at the end of the year when his wages would be due, had he continued on.”
    2. In an action brought upon the covenant after the expiration of the year, it was held that plaintiff was entitled to recover on it, though the parties separated, by consent, before that time.
    3. Had there been no provision in the covenant that plaintiff should be paid on leaving defendant’s service, even then if dismissed, or leaving by consent, he might have regarded the special contract as ended, or stood on it, giving either of these as an excuse for non-performance on his part, and recovered pro tanto. Vide Rye vs. Stubbs, 1 Hill, 384.
    4. The rule in pleading is, where there is a condition precedent, such as services to be performed, and in consideration thereof, money is to be paid, there must be an averment of performance, or an excuse for non-performance. The excuse is perfect if the defendant prevent the performance, or consent to the non-performance.
    5. Whether plaintiff was turned off, or whether defendant consented to his leaving his service, were questions of fact for the jury.
    
      Before O’Neall, J. at Chester, Fall Term, 1843.
    This was an action of covenant, for the recovery of plaintiff’s wages, as the defendant’s overseer.
    The covenant stipulated, that the plaintiff should, in all respects, discharge the duties of an overseer, and obey the defendant’s directions ; for the year’s services, the defendant was to pay the plaintiff $250 — but if he had cause, he was to be at liberty to turn the plaintiff off, and was then only to be liable for the proportion of wages to which the time served, compared with the whole year, would entitle the plaintiff.
    It was proved that the plaintiff went into the defendant’s employment, 1st. January, 1840, and continued until the last of July; he then left, and went to the village of York. It was proved that the plaintiff was steady, and worked the crop as well as the horse power which he had would permit. The defendant, just before the plaintiff left, told Mr. Hyatt, if the plaintiff did not do better, he would turn him off. To Charles Hayes, just after the plaintiff left defendant’s employment, he said his overseer had left him, he did not turn him off. He said he had told the plaintiff he must do better, to which he replied, if he had not pleased him, he could not do it. The defendant said, he then told him he must then get some one who would. That night, he said the plaintiff sent him the keys, and he gladly accepted them.
    This was the plaintiff’s case; the defendant moved for a non-suit, on the ground that the plaintiff had not proved he was turned off. The motion was overruled.
    The defendant called, and swore H. J. Green, who proved that he was at his uncle’s, the defendant’s, when the plaintiff alleged he was turned off. The defendant asked him, whether the work in a particular field was done. He said it was not. The defendant said, it seems I cannot get you to do what I direct. The plaintiff said, 1 have tried to please you, but cannot, he turned off muttering something to himself. That night he sent the keys to the defendant by a boy.
    The jury were instructed that the plaintiff’s contract was an entire one ; he was bound to serve out the year, unless the defeneant turned him off, or consented to the plaintiff leaving his service, in either of which events, he would be entitled to recover for the time he was in the plaintiff’s service. The questions, whether the plaintiff was turned off, or whether the defendant consented to his leaving his service, were left to the jury as mere matters of fact. The presiding Judge told the jury, if they believed Hay’s testimony, after comparing it with Green’s, it might be, that the fact of previous disagreement between the plaintiff and defendant, and the immediate sending home the keys, which the defendant said he gladly accepted, might justify them in concluding that the defendant, if he did not turn the plaintiff off, yet was willing, and consented to his leaving him.
    The jury found for the plaintiff, the plaintiff’s wages to the time he was discharged, with interest from the 1st. January, 1841.
    The defendant appealed, and moved the Court for a non-suit and new trial, on the following grounds.
    For a non-suit,
    1. Because there was no proof to support the allegations that the plaintiff had been turned off on the 28th of July 1841, and plaintiff’s own witnesses clearly proved that he left the defendant’s services on that day, of his own accord.
    2. Because there was no proof to support the plaintiff’s allegations.
    And for a new trial,
    1. For the same causes as above taken for a non-suit.
    2. Because the plaintiff left the defendant’s services of his own accord and without cause, he was not entitled to any thing.
    3. Because there was no evidence, from which the jury could legally infer that the defendant had agreed to or acquiesced in the plaintiff’s leaving his services, under any impression that he was to pay him any thing.
    4. Because the Court erred (as the defendant supposes) in his charge to the jury, in saying to them that they might, from the fact proved as to the defendant saying that he willingly accepted the keys, when sent to him by plaintiff, infer that the defendant had agreed to the plaintiff’s leaving his service, this could not render defendant liable to pay any thing.
    5. Because, by the terms of the covenant, the plaintiff was not entitled to one cent.
    
      Eaves & Thompson, for the motion.
    ---, contra.
   Curia, per

O’Neall, J.

The grounds for non-suit, although variant in their terms, are in substance the same ; they both rely upon the supposition, that in point of fact, there was no evidence that the plaintiff was dismissed by the defendant.

The proof that the defendant had said, if the plaintiff did not do better he would turn him off, and that immediately afterwards he left, connected with the further declarations of the defendant after he did leave, that he did not turn him off, but that he had told him to do better, to which the plaintiff replied, if he had not pleased him, he could not do it; and, therefore, that defendant said to him, that he must then, get some one who could, would lead any mind to conclude, that although, perhaps, the defendant did not in words say to the plaintiff, you must quit my service, that yet he compelled the plaintiff to leave it. Under such circumstances, it is in vain to talk about a non-suit, the proof must go to the jury, and if it satisfies them, that the defendant forced the plaintiff to leave, then it is true in fact, as he alleges, that the defendant dismissed him.

fI hese remarks cover and dispose of all the grounds for a new trial, except the fourth. That supposes, that there was error in the charge, in saying to them, if the defendant assented to the plaintiff quitting his service, that he could recover. This action is on the covenant, and there is no objection to the manner in which the plaintiff has set out his cause of action in his declaration. The covenant expressly provides, that if the defendant had cause to turn off the plaintiff before the end of the year, he was to be at liberty to do so, on giving to the plaintiff “ his (the defendant’s) obligation for the time he served, payable at the end of the year when his wages would be due, had he continued on.” This action was brought after the year had expired, so that the plaintiff’s right to demand payment for his services was perfect, and this verdict is right, if after leaving the defendant’s service, by mutual consent, he, the plaintiff, can stand on the original covenant, and recover on it. That is, I think, too plain to admit of doubt, when the covenant itself stipulates, that in that very event he shall be paid. All the confusion here, has arisen from what might have been the state of things, if there had been no provision of that kind in the covenant. Even then, if the defendant dismissed the plaintiff, or consented to his leaving his service, he might have regarded the special contract as ended, or stood upon it, giving either of these as his excuse for non-performance on his part, and recovered pro tanto. To this effect, is Rye vs. Stubbs, 1 Hill, 384. There, my brother Johnson' summed up by saying, “ The plaintiff had, therefore, the right to elect whether he would proceed on the original contract for the whole year’s wages, or to consider it as ended, and proceed on a quantum valebat for work and labour.”

These words apply, it is true, to the case where an overseer is dismissed, but they are, as I conceive, equally applicable to the case where the overseer leaves by consent of his principal. For if he dismisses him, and he goes into, other service, and receives an equivalent for the loss he sustains by losing the performance of his contract with the defendant, he, the plaintiff, could only recover pro tanto, still his action would be on the covenant. So, if he leaves him by consent, the consent waives the performance of the conditions precedent on his part, and entitles him to such damages as he has sustained by the defendant’s non-performance of his part.

The rule in pleading is, where there is a condition precedent, such as services to be performed, and in considerathereof, money is to be paid, there must be an averment of performance or an excuse for non-performance. 1 Chit. PI. 309. The excuse is perfect, if the defendant prevent the performance or consent to the non-performance. Here the last is shewn, and the question is, is not the plaintiff entitled to recover on the covenant! I think he is. But when it is remembered the covenant is, that he shall be paid in the very event which has happened, I am at a loss to perceive how his right to recover can be questioned.

The motion is dismissed.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.  