
    William D. Nutt, Executor of Alexander Hunter, deceased, Plaintiff in error, v. Philip H. Minor.
    Where the marshal of the District of Columbia engaged the services pf a clerk for a stipulated sum per annum, and the service continued without any new agreement,' and the jury were instructed that they might imply a new agreement to pay the clerk at a different rate, this instruction was erroneous. There was nothing,in. the evidence from which the jury could imply such new agreement.
    ■ This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.
    The facts are stated in the opinion of the court.
    It was argued by Mr. Bradley' and Mr. Davis, for the plaintiff in error, and by Mr. Lawrence, with whom was Mr. Carlisle, for the defendant in error.
   Mr. Justice CATRON

delivered the opinion of the court. Alexander Hunter was appointed marshal of the District of Columbia in 1834, and continued to fill that office by reappointments, until June, 1848, at which time he died. Shortly after he entered on the duties of his office, in 1834, he appointed Daniel Minor his deputy' for the county of Alexandria, where a separate court was held and jurisdiction exercised; and for that county Daniel Minor was practically marsTial.

Philip E[. Minor, the plaintiff beldw, was the brother of Daniel Minor, who,.being desirbus to obtain the office of .clerk to the marshal for Philip H., applied to Hunter for this purpose, and advised him to employ Philip H. as his clerk, and Hunter agreed to do so; Daniel and Philip came up from Alexandria to Washington, and, m the marshal’s room, a conversation took place between Philip H. Minor, Hunter the marshal, and Daniel Minor the deputy. Hunter proposéd to give, as salary for the service, two hundred, dollars per annum, and that Daniel Minor as deputy for Alexandria county, should give .one hundred dollars, making the. salary three hundred dollars. Daniel Minor insisted that the salary should be larger; Hunter replied, that he was just in office and did not know what 'the profits would be, nor what’the value of the duties to be discharged by the clerk would be; and that he ’did not feel justified in giving a larger salary. Daniel Minor then offered, that if Hunter’would pay tWo hundred and fifty dollars, lie would pay one hundred and fifty towards the" salary, which was agreed to by Hunter and Daniel Minor on the one part, and by Philip H. Minor on the other.

Daniel Minor, who was the principal witness, testified to the foregoing facts for the plaintiff below, on tfie trial; and further deposed, that he took' his brother Philip aside and conversed with him out of the hearing of Hunter, and advised him to. take the offer for a year, small' as it was; .and accordingly Philip H. assented ; that nothing was said about a continuance of the agreement after the first year.

Daniel Minor further deposed, that he told his brother Philip, in the foregoing conversation, “ that the substance of the matter was an agreemeht confined to one year, and that the compensation would be afterwards made adequate to the services, and the value of the office; and that this was urged upon Philip as an inducement to agree to the engagement for the year; but that Hunter did not authorize the witness Daniel Minor, to promise Philip H. that he would be engaged after the first year at a higher compensation.”

Daniel Minor also deposed, that he suggested to Hunter during the. first year’s- service, that the salary of Philip H. should be increased, but Hunter declined doing so. The agreement was precise: Hunter was to pay 250 dollars, and.Daniel Minor 150 dollars,», as clerk hire, per annum; nor was the contract limited, to one year, so far as Hunter entered info it; it was general, at the rate .stipulated, for any length of time that Hunter might remain in office, or that Philip H. Minor might see proper to serve, and Hunter and Daniel Minor see proper to retain him as clerk. It is most obvious that the court and jury held Hunter bound by'what Daniel Minor promised in the absence of Hunter, apd without his-knowledge, and contrary to his consent. There, is an entire absénce of proof, that Hunter ever assented, by word or act, to raise the salary of Philip H. Minor as clerk; nor does, it appear that the latter at any time applied to Hunter ip person, and insisted, or even suggested that his salary should be increased, until February, 1847, when the letter offered in evidence was written; on the contrary,' he received the salary of 400 dollars, as at first stipulated, for fourteen years, regularly crediting himself with it on the marshal’s books, each year.

. If we reject Daniel Minor’s evidence as incompetent to bind Hunter,, so far as he used persuasions in Hunter’s absence to induce Philip H. Minor' to hope, and probably believe, that Hunter would raise his salary, then the case, as proved by the plaintiff below, rests alone on the special agreement made in 1834; and we think it must be stripped of all these conversations between Daniel Minor and his brother, to which Hunter never assented.

Nutt was sued as Hunter’s executor, for work and labor, care and diligence, done and performed by Minor in and about the business' of Hunter iri his lifetime, and at his special instance and request. -And also for sundry matters and things properly chargeable in an account therewith filed;'and on these allegations of a quantum meruit, Hunter’s estate was charged for 400 dollars per annum, in addition to the 400 dollars annually paid on the special agreement, running through the whole time of Minor’s service; and a verdict was had, andTa judgment rendered for five thousand and fifty-five dollars and seventy-three cents, against the estate, which was held responsible, regardless of the fact that Daniel Minor was bound to pay one hundred and fifty dollars of the four hundred, from April, 1834,To June, 1847, when Alexandria county was retroceded to Virginia by Congress.

On this state of facts, the court was asked to instruct the jury, (among other things) that “ if from the whole evidence aforesaid,the jury shall find that in April, 1834, the plaintiff entered into the employment of the deceased to serve him as clerk at a salary of 400 dollars for a single year, and thereafter continued to serve the said Hunter as. clerk aforesaid, dúring the whole time mentioned in said account and declaration, and that no new agreement was made between the said plaintiff and said Hunter, for a- compensation different from that which- was as aforesaid first agreed upon between them; and if they shall further find that said Hunter in his lifetime fully-paid said plaintiff .for his said services, at the rate aforesaid, then the plaintiff is not entitled to recover in this .action; which instruction the court refused to give as prayed, but did modify the same by inserting the words “ express or implied ” between the words “ agreement” and “was made.”

By thus modifying the instruction, the court told the jury, in substance, that they might find on the allegation of a quantum meruit, for work and labor done, and for services performed, and hold that an agreement to pay on Hunter’s part, might be “implied,” because of the performance of the services; and, that a verdict might be found equal to the value of such services, according to the proof, deducting therefrom the amount already paid on the special agreement; and that such agreement did not preclude the plaintiff below from recovering additional compensation, to any amount that the jury should think he was entitled to. That the instruction as given did reject the special agreement, and leave the jury free to imply a new promisé arising on the quantum meruit, for labor and services, is manifest; and therefore we are of opinion, that the instruction as propounded, ought to have been given without an addition of- the-words “ express or implied,” ,as inserted by the Circuit Court.

The letter, offered in evidence, was a plain attempt on the part of the plaintiff to make evidence for himself.- It could only be offered for the purpose of showing that Hunter was thereby notified of Minor’s unwillingness to act as clerk.after the notice, unless his compensation was increased, and that he would quit unless there was an increase; or as evidence to be .taken in connection with other subsequent proof, showing. that Hunter assented to the propositions contained in the letter. But as Hunter not only refused to sanction the-demand set up, but indignantly resisted, and resented it, the letter could be of no value to establish a new promise; nor can it be of any value as notice that additional compensation would be claimed for services rendered thereafter, because the plaintiff, with full knowledge of Hunter’s determined rejection of the claim, continued to perform his duties as clerk, and to receive his salary of 400 dollars as usual, and thereby submitted to Hunter’s assumption that the salary was governed by the special agreement made in 1834. We are of opinion that this letter should have been objected to as evidence, and the party offering it compelled by the court to state for what purpose it was offered; so that it might have been inspected and.passed on by the. court, without being read to the jury. As, however, this course was not pursued at the trial by the defendant’s counsel, and a general objection made to reading the letter for any purpose, we do not think the court erred in admitting the evidence in the first instance, although it ought certainly to have been rejected and taken from the jury, after the evidence was closed, had a motion been made to this effect, because it was unsustaincd by other evidence .that Hunter assented to the claim made by the letter. But as no motion was made to withdraw this piece of evidence, the court properly left it with the jury.

We order that the judgment of the Circuit Court be reversed, and that the cause'be remanded for another trial.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is how here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause bé, and the same is. nereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.  