
    Joseph Gulla, Appellant, v. Louisa Barton, as Surviving Partner of the Firm of Stewart, Barton & Company, Respondent.
    Third Department,
    November 11, 1914.
    Master and servant — labor union—right of union laborer after service under individual agreement to recover excess in wages fixed by an agreement between his union and the employer.
    A member of a union, who has contracted to work for an employer of union labor for a sum less than the rate of wages fixed by the union, may, upon being informed of an agreement between his employer and the union, fixing a greater wage, recover the excess for the time served.
    The employee did not waive the benefits of the agreement between the union and his employer, of which he had no knowledge, by contracting for himself.
    Appeal by the plaintiff, Joseph Gulla, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 27th day of October, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.
    
      Thomas J. McNamara, for the appellant.
    
      Coville & Moore [James Moore of counsel], for the respondent.
   Kellogg, J.:

Plaintiff worked in the defendant’s brewery in the years 1911-1912 for twenty-nine weeks and in the years 1912-1913 for twenty weeks, for which work he received nine dollars per week, which apparently was the wage agreed upon between him and the defendant. He brings this action to recover nine dollars- more for each week’s service, basing his claim upon an agreement made between the defendant and Maltsters’ Union Ho. 48, of Syracuse, H. Y., and vicinity, of which he was a member, and which was a local subordinate branch of the International Union of the United Brewery Workmen of America, the former being incorporated under the laws of the State of Hew York, and the latter incorporated under the laws-' of the State of Ohio. While the services were being performed' the brewery was a union brewery, the defendant having entered into a written agreement with the said union by which none but union men were to be employed in the brewery, and if extra help were needed members of the International Union of United Brewery Workmen of good standing should be employed at union wages, and that all employees were to receive eighteen dollars per week. This agreement was to continue in force one year from October 1, 1912, and was renewed for another year. The defendant’s object in making the agreement with the union was to prevent strikes and to secure the use of the union label. The union furnished labels and the defendant used them and did business all the time referred to as a union brewery.

The union was formed for the benefit and protection of its members, and especially for the purpose of securing to them a reduction in the hours of toil and an increase in wages. The union is based upon the idea that the individual workmen cannot fully protect themselves against their employers, but that by united action they can be better protected in the respects mentioned. It is supported by dues and fees paid by its members, which dues the member pays for the benefit which he expects to realize from the organized action of himself and his coworkers.

The agreement referred to was a valid contract, which may be enforced in any proper manner. The renewal of the agreement indicates that it was beneficial to the defendant’s firm. The union entered into the contract for the benefit of the plaintiff and the other employees in the defendant’s brewery, and for the benefit of all union workmen.

It is urged, however, that the plaintiff cannot maintain an action upon the agreement, and that he has waived the benefits of it by contracting for himself. Apparently he did not know of the agreement between the defendant and the union until May, 1913, when a dispute arose between the plaintiff, the defendant and othftr employees. An officer of the union was called to the brewery and then showed plaintiff the, agreement and insisted that thereafter union wages miist be paid according to the agreement, and for the remainder of the season such wages were paid, the plaintiff stating to the defendant at the time that he would look for his back pay through law. The evidence does not show any act.of the plaintiff made with knowledge of the facts which would waive the benefit of the contract with the union in his behalf. We have, therefore, a situation where the plaintiff received from week to week the wages contemplated by the contract of employment between him and the defendant, and his union unbeknowmjto him had made a contract for his benefit based upon a separate consideration passing from the union that he as a member thereof should receive a greater compensation. In payment for the labels' and the use of the union name in marketing a brewery product the defendant had agreed to pay a stated union wage to the plaintiff and to the other men working with him as members of the union. The union label • had force and value, and the union had strength by reason of the moneys which it received as fees and dues from the plaintiff and other members. The plaintiff is, therefore, connected with the consideration and was a party intended to be benefited by the agreement. (Smyth v. City of New York, 203 N. Y. 106.) It was a contract made by his representative for his benefit, and its validity is not affected by the independent agreement, express or implied, between him and defendant. The contracts are concurrent and neither one destroys the other. The nonsuit was, therefore, improper.

Upon the evidence as it stood the plaintiff was entitled to receive eighteen dollars per week for the time served. Having received only nine dollars per week for the time mentioned, he may recover the difference. Judgment, however, cannot be directed for him as the defendant’s case has not been put in. The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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