
    Thomas Larkin, App’lt, v. Village of Brockport, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    Canal bridge — Tender—Compensation.
    Where there was an express or implied contract between the tender of a. canal bridge, appointed under the act of 1887, and the village, which was to pay him his compensation, as to the rate of wages to be received by the former, it was not affected by the subsequent passage of chap. 380 of 1889.
    Motion for a new trial on exceptions, ordered to be heard at. genera] term in the first instance.
    
      George P. Pecker, for app’lt; John M. Drake, for resp’t.
   Werner, J.

— In 1887 the legislature of this state passed an act (chapter 118) making an appropriation for, and directing the construction of, a lift bridge over the .Erie canal in the village of Brookport. By the term of the act, the operation of said bridge-was “to be under the direction of the superintendent of public-works, but the expense thereof to be paid by the village of Brockportand the authorities of the said village were authorized to-levy taxes for that purpose. The bridge was constructed, and in the spring of 1888 the plaintiff was appointed bridge tender by the assistant superintendent of public works. Soon after such appointment, the salary of bridge tender was fixed by the board of trustees of said village at $45 per month, or $1.50 per day, at which rate plaintiff was paid monthly during the entire season, for twelve hours’ work each day. Before the opening of the canal season of 1889, the plaintiff sought and obtained appointment to- • the same position for the season of that year. The canal opened on or about May 1st, and plaintiff was appointed about ten days- or two weeks prior to that time. There was no talk between the assistant superintendent of public works and the plaintiff as to the rate of wages or who should pay them. Plaintiff knew that there was; then pending in the legislature an act which subsequently, and on June 6th, became chapter 887, Laws of 1889, and which provided that “from and after the passage of this act wages of day laborers, employed by the state, or any officer thereof, shall not be less than $2.00 per day and for all of such employed otherwise than day laborers, at a rate of not less than twenty-five cents per hour.”' About two week after plaintiff began work, the board of village-trustees again fixed the wages at $45 per month. Plaintiff received no formal or official notification of this action, but obtained, knowledge of it from outside sources. He thereafter signed and. verified his monthly bills, signed receipts and indorsed orders for-his wages, all of which papers were prepared for his signature by Mr. Drake, the clerk of the village board. Immediately after said chapter 880 became a law, plaintiff had talks with the president and two trustees of the village, in which he stated that he w’anted his extra pay. On various occasions thereafter, when signing the-necessary papers to obtain his monthly wages, he called said Drake’s attention to his claim for additional compensation under the law above referred to.

At the close of plaintiff’s case, the defendant moved for a non-suit, upon the grounds which appear upon the record, and the-motion was granted. It is evident that the learned trial justice took the view that said chapter 380 did not apply to this.case, because the plaintiff was working under an implied contract for the same wages he had received the previous year, as fixed by the village trustees two weeks after his appointment, in 1889. If plaintiff’s case is governed by the provisions of the act in question,, he was entitled to just double the amount of pay he actually received. The plaintiff was unquestionably an employe of the state, and in the absence of a pre-existing contract, express or implied, to work for a different rate of wages, was entitled to the-compensation fixed by said chapter 880. Clark v. State, 142 N. Y. 105 ; 58 St Rep. 444. But, if there was an express or implied contract between plaintiff and defendant as to the rate of wages to be received by the former, it was not affected by the subsequent passage of the act in question. Clark v. State, supra.

There is no express contract. Was there an implied contract t The circumstances of the case, as disclosed by the present record,, seem to require an affirmative answer to this question, unless the-decision of this court upon the former appeal, reported in 81 Hun, 364, and 63 St. Rep. 140, is a determination that there was a question of fact for the jury. Upon the first trial the cause of action now under consideration was sent to the jury without instructions upon the law relating to implied contracts. Defendant’s requests for a proper charge upon that subject were denied. Upon the assumption that there was no express contract, and that the facts warranted the submission of the case to the jury, this court held that defendant was entitled to have the jury instructed upon, the law of implied contracts. But -the question whether, upon the facts and circumstances disclosed by the record, the trial court would have been justified in holding, as matter of law, that there was an implied contract, was not before the court. We are, therefore, called upon to consider the case upon the record as now presented. From this it appears that plaintiff knew what, the wages had been the. year before. After the village; board had fixed the wages at $45 per month, he accepted, without, protest or objection, that sum-for his first month’s pay. He says-that he expected to get more in case the pending bill in question-should become a law. He admits that he said .nothing about it. to any of the village officials. The action of the village board in fixing his wages as above stated was taken about two weeks after he entered upon his duties. While the record does not disclose just when plaintiff received knowledge of this fact, it may fairly be inferred that, in a village like Brockport, a resident particularly affected by any action of the trustees would be advised thereof through the usual channels of publication and general discussion. Moreover, plaintiff’s own statement is a practical admission that he had knowledge of the action of the board immediately after it was taken. He made no protest or suggestion until áfter the 6th day of June, when said chapter 380 became law, Then, instead of making ah immediate formal demahd upon the board for increased pay, in accordance with the terms of the statute, he contented himself by conversing in a casual way with individual trustees. It also appears that he talked with Drake,"the village clerk, about the passage óf this law, and claimed to be entitled to increased pay, but never made any formal demand. Upon Drake’s statement that he had no authority to pay more, and that it was for the trustees to say what should be done, plaintiff Continued to accept his wages from month to month, precisely as he had done in 1888. The presentation of plaintiff’s claim to the state board of claims, after the’ close of the season of 1889, while not in any sense controlling of his actual rights, reflects a strong light upon his apparent understanding of the situa-tion prior to the decision of the state board. Notwithstanding his ¡statement that he always thought the village would have to pay, "this circumstance, in connection with others, indicates that plaint-tiff had no serious thought of attempting to collect extra pay from the village until after his attempt to collect from the state. His own testimony indicates that his efforts to'obtain this incre'ase were not those of a man standing upon his supposed legal rights, but rather evinced' a desire to get the increased pay if he could -make the authorities believe that he was entitled to it. When plaintiff was presented with the vouchers for his first month’s pay, he had notice that the' village authorities' understood that he was to work under the same arrangement which existed in 1888. Plaintiff's acceptance of the money without ptotest expressed his acquiescence in that understanding, and in the action of the board taken in May, 1889. In this transaction we find the circum.-stanceS upon which the law rests an implied contract. The fights -of the partids became fixed then and there. The mental reservations of the plaintiff as to the possible effect of the proposed state law are not in any sense an element of this implied contract. Riley v. Mayor, 96 N. Y. 331. The acts of the parties, and riot the sécret operations of their minds, are the elements of which .implied contracts are composed.

We agree with counsel for the plaintiff that the cases in which .•an implied contraót has been based upon uninterrupted ánd continuous. service beyond the period of the original contract are not •nontrolling here. There was herd no such continuance. But the knowledge which both parties had of the previous contract, con.¡sidered in connection with the action of the village board in May, 1889, and plaintiff’s acquiescence therein, furnishes ample ground for holding that, at the time of the passage of said chapter 380, there was an existing implied contract between the parties, which was not affected by the passage of said act. If said act had be•come a law before the fixing of plaintiff’s wages by the village trustees, and before knowledge thereof by him, or his acceptance ■of the sum fixed, we would have a case from which a contract to work for $45 per month might be implied; but such circumstances would clearly present a question of fact for the jury, because of conflicting inferences which might be drawn from the ■¡existing conditions. Here there are no conflicting inferences. Up to the moment when chapter 380 became a- law, plaintiff's acts were utterly at variance with the alleged operations of his mind. His rights are to be determined by bis acts and the apparent understanding of the parties prior to.the passage of said law. His subsequent conduct can have no more effect upon the implied contract than could an attempted repudiation of a written contract plain in its terms. As to their binding effect, both classes of contracts rests upon the same principles. The case of McCarthy v. Mayor, 96 N. Y. 1, is not like this in its facts, but the language of the court in discussing the principle of implied contracts is particularly applicable to this case:

“An agreement for extra pay may be implied from circumstances; but such an implication arises only when the services are rendered under circumstances authorizing an expectation of compensation, or the inference that they would not otherwise have been rendered.”

What circumstances was there in this case to authorize the expectation of increased compensation, except the pendency of a proposed statute which, so far as plaintiff knew, might never ripen into a law? It is not pretended that the pendency of this law was a circumstance upon which plaintiff definitely based his rights. If he desired to reserve to himself the prospective benefits of this law, he should have communicated the fact to defendant’s agents or officers. This question is not met by the suggestion that the defendant is the mere debtor, and not the employer of the plaintiff. While it is true that the state was the employer, the defendant was, by the very terms of the statute which required it to pay the plaintiff, necessarily made a party to the contract of employment. Plaintiff had not only legal, but actual,- notice of this fact; and he ■cannot now be heard to say that there was no privity of contract between him and defendant. Thestatute required the superintendent of public works to" employ the necessary working force on this bridge, but it also directed the defendant to pay for the same; and, while it is unnecessary to decide what plaintiff’s rights would have been had the state superintendent assumed to fix plaintiff’s compensation, we are convinced that- the statute, by implication at least, authorized the making of a contract between the plaintiff and defendant.

Was there any inference that plaintiff would not render the service if he did not get his pay? We think not. On the contrary, every inference which may properly be indulged in from the testimony indicates that the plaintiff was ready to begin and continue his work, whether he obtained increase pay or not. The Clark Case, supra, differs from the one before us in the important circumstance that no rate of compensation was ever fixed by the state or agreed upon between the parties, except as it was fixed by the statute passed subsequent to Olarlc’s employment. So far as appears, he had never been employed by the state before, and simply received and receipted for the same -wages which he and others were getting and had previously received for similar work. Nothing had occurred prior to the passage of said chapter 380 from which a contract could be implied but the acceptance by Clark without objection of his monthly wages. : This, in the absence of a finding- or a request to find a contract from the facts disclosed, was sufficient authority to treat-the- case- as one of employment,, without-, any contract, as to compensation; and therefore, notwithstanding Clark’s acceptance of less than was provided by the statute, he was-held entitled to its provisions. Here the acceptance by Larkin, after the passage of said chapter 380, of the wages fixed by the village board, is an incident which is no more controlling than was the same act-in the Clark Case„ It is what Larkin did prior to the passage of'the-act which gave the trial court the right to .say, as. matter of law, that he was bound by an implied contract which was in force when chapter 380 became a law. This is not in conflict with Kehn. v. State, 93 N. Y. 291; Riley v. Mayor, 96 id. 331.

In the former of these cases the attempt -of the superintendent of the capítol to reduce .the. plaintiff’s pay;was in plain contravention of the statute which was in force at the time of his' employment, in the case-of Riley v. Mayor, supra,-.itwas held that, by the act providing' for the organization and-control of the New York fire department, the-'fire commissioners .were authorized to transfer employes of the department from one: class of duties to another; and, m case .of - such transfer, to a class of duties less profitable to the department, the employe - was - entitled only to the compensation adapted, to the duty required. It Was also held, however, that in such - a case the employe’s acceptance,- without objection, of the salary attached to the inferior position, .was a waiver of the' right to claim the salary of. .the superior one;-. ■

- Plaintiff’s counsel contends that-the'wage act in question superseded any contract .which.may have'existed prior to its enactment, We do not. concur in thiswiew;. The! defendant, .as a.municipality, of-course derived .its'powersffrom'the legislature; but one of these-powers was created by chapter 118, Laws 1887, requiring it to pay the operating expenses ,>of - this bridge, and authorizing it to levy taxes for that purpose Assuming that the'legislature had authority to abrogate any existing contract by subsequent enactment,— a- power -which we-do- nbt. concede (Const. U. S. art,. 1, § 10), — it would bemn unWarranted'.stretch of the rules of judicial.construction to.ho!ditha,t stick a.result .is to.be obtained by mere implica-, tian when the absence in the statute of language disclosing such an'intént clearly indicates'that-it did not 'exist, ' "

,- -The ruling ¡of. the court :at folio 36 was' not erroneous, but, even if-so, it-was prejudicial1 to plaintiff. Plaintiff’s conversations with individual trustees lof’ the defendankwould not work a rescission of any existing contract; but,- even if we assume that evidence of these conversations. was competent for that purpose, it appears at folio 23; that-, {plaintiff -has already testified in substance to these same -conversations, and:-plaintiff was therefore not prejudiced by the ruling.

■ Bláihtiff,’s/ motion .for a. new trial is therefore, denied, and the judgmefit-of . the {trial court-affirmed, with costs.

All concur;,-.'  