
    Fannie B. Carrere, Respondent, v. Robert G. Dun, Appellant.
    (Supreme Court, Appellate Term,
    September, 1896.)
    1. Master and servant — Extra compensation.
    A bookkeeper employed by a firm is under obligation to do whatever work upon the books or accounts may be required oí him by any of the partners, and no agreement for extra compensation .can be, implied where he is called upon to write up or examine the individual books or accounts of one of the partners.
    3. Same.
    An employee cannot by taking work home which ought to have been doné at the employer’s place of business during business hours, make out a claim for extra pay.
    3. Same — Declarations of agent.
    Where an agent has no authority to contract with another for extra compensation, his declarations in relation thereto are not admissible to charge the master.
    Carrere v. Dun, 17 Mise. Eep. '294, reversed.
    Appeal by defendant from an affirmance by the City Court, General Term, of a judgment in favor of plaintiff.
    Douglass & Minton (J. B. A. Mullaly, of counsel), for appellant.
    James A. Gray, for respondent.
   McAdam, J.

The action is by the plaintiff, as assignee of William Carrere, to recover for services alleged to have been rendered by him in going over certain books of the defendant and making up a statement therefrom. The defense relied upon was no employment and the absence of any agreement on the part of the defendant to pay for the services rendered.

These are substantially the facts: William Carrere was an accountant employed by R. G. Dun & Co., of which firm the defendant was senior member. The defendant wanted some of his individual books gone over, and requested Mr. Greene, another of the firm’s employees, to do the work. Greene replied that he was so busy with other matters that he would rather Carrere would do it. The defendant said he had no objection; whereupon Greene went to Oarrere and told him what had occurred. Oarrere examined the accounts and made out a statement showing the result, which was furnished to Greene, and by him delivered to the defendant.

While the work was going on the defendant inquired how it was progressing, and gave Oarrere two slips of paper, one containing twenty-one items, and the other twenty-five names, relating to the particular accounts about which the defendant wanted information. This is all that passed between Oarrere and the defendant. The fprmer then had the opportunity to make known that he expected extra pay; but not a word was said about extra compensation or doing the work out of business horns or away from the place of business; so that there was nothing from which the defendant could infer that any claim for extra pay would be made.

The facts disclosed fail to establish a cause of action. To hold that the circumstances stated implied an independent obligation on the part of the defendant to pay for the work done would be unprecedented. In almost every firm each member has individual boobs or accounts, and conducts more or less correspondence, and it would be a startling proposition that if he requests one of the firm employees to write up his book, copy a letter, make a deposit . in bank or deliver a message, there is an implied obligation to pay the employee therefor in addition to his regular compensation from the firm. Yet that is what the court must decide in order to sustain this judgment. Oarrere.was not an occasional but a regular employee of the firm, engaged at an annual salary of $2,000, and his duties required him tó do whatever work upon books or accounts the firm required of him. The fact that the work in this instance was on the private accounts of one of the firm makes no difference in the legal result, for any member had the right to command his services within the scope of his employment.

In order to be entitled to extra compensation the service must be such as the servant is under no obligation to perform; for where a person is bound to do' an act, and his duty either at law or under á contract is fixed, a. promise to pay an increased rate of compensation for doing what his duty requires him to do is a nudum pactum and void for want of any consideration to support it. Wood on M. & S. (2d ed.) 174.

The plaintiff also proved that part of the work was done away from the place of business of the firm on evenings and Sundays; but the case'is destitute of evidence that there was any knowledge on the part of the defendant that the work was so done. An employee cannot, by taking work home which ought to have been done at the employer’s place of business during business hours, conjure up a claim for extra pay. There must be some request on the part of the employer to depart from the customary course, or some approval thereof on his part, before he can be charged with impliedly contracting for extra compensation. Presumptively the annual salary of an employee is the measure of his compensation for all work done by direction of the firm acting through its individual members, and in order to rebut this presumption it-must affirmatively appear that the work directed is so far out of the usual course, or is- to' be performed at or in such an unusual time or manner that the law can safely imply that in the nature of-things both, parties must have known a!nd, therefore, contemplated that extra compensation must follow as of course.

Wood, in his work on Master and Servant (2d. ed., § 86), says: “ But in any event, if a servant employed for a term is required to labor an unreasonable number of hours each day or to' perform labor upon the Sabbath, he cannot recover any thing for extra work during the term, unless-there was an express promise to pay him therefor. Elis remedy, in case he is required to labor an unreasonable number of hours for a day’s work, is to quit the service. If he does not, he can make no claim for extra compensation, unless it was promised to him by the master. All services rendered under a contract are deemed as having been included in it.’’ See also Smith on M. & S. (3d ed.) 160; McCormack v. Mayor, 14 Misc. Rep. 272.

The general rule is, that a contract will be implied only when there is no express contract, ‘ expressuni facit cessare tacitum.'’ ” Story on Cont. (5th ed.), § 18. The plaintiff attempted but failed to prove an express contract to pay, and her right to recover rests solely upon the implications which flow from the facts provéd, and these do not establish a right to extra compensation.

To establish her case the plaintiff undertook to show that Greene knew that the work was done away from the place of business, and that the latter had gone so far as to agree that extra compensation would be allowed. The plaintiff’s assignor, after testifying' that Greene told him that the defendant requested that he should’ make out his private- account, was interrogated as follows:'

“ Q. How, what reply, if any, do you make to that? A. I told him ” (Greene) I would not do it except for pay — additional pay, and he and I agreed. Q. What did you say and he say? A. He said I should be paid for it additional.”

This, as well as all evidence of a similar character, was, in every instance, objected to upon the ground that Greene’s declarations could not bind the defendant. The various objections were overruled under exceptions specifically taken.

There is nothing in the record proving that Greene was" a general agent of the defendant, and the only inference deducible from the testimony is, that he was a special agent concerning the particular object in view. The distinction drawn by Paley is that an authority is general or special with reference to its object, i. e., according as it is confined to a single act, or is extended to all acts connected with a particular employment. Story adopts the same distinction. A special agency properly exists where there is a delegation of authority to do a single act; a general agency properly exists where there is a delegation to do all acts connected with a particular trade, business or employment.” Ewell’s Evans’ Agency, 135. In the case of a special authority the agent’s power is directly derived from the principal and limited accordingly (id.), and if it is transcended the principal is not bound. Story on Agency, § 126.

Greene and Oarrere were fellow-bookkeepers, and though the former was in a degree the latter’s superior, there is nothing in the position he held that carried with it the idea of a general agency for the defendant, one of his employers, or that gave him implied authority from the defendant to contract with fellow workmen for extra compensation. He did not assume to deal with Oarrere on the basis of possessing such authority, for the very nature of the transaction disclosed to the plaintiff’s assignor that in this particular instance he was doing nothing more than delivering a message to a fellow clerk from one of their common employers.

As Greene had no authority to contract for extra compensation his declarations in respect thereto were inadmissible to charge the defendant. An agent may, undoubtedly, within the scope of his authority bind his principal by his agreement, and in many cases by his acts. What an agent has said may be what constitutes the agreement of the principal; but until there is some'proof of authority upon the part of the so-called agent all declarations of Ms must be rejected as incompetent. People v. Parish, 4 Den. 153; Howard v. Norton, 65 Barb. 161; Cow. Tr., § 159. Where such evidence is admitted on the promise of counsel to supply the proof of authority subsequently, and the required evidence is- not given, it has been held to be reversible error. Snook v. Lord, 56 N. Y. 605. Other cases hold that the aggrieved party should not rely wholly upon the exception taken at the time, but if when the evidence is all in the connecting links are.not supplied, he must move to strike out the objectionable evidence. Bayl. Tr. Pr. 208; United States Vinegar Co. v. Schlegel, 143 N. Y. 544. There was no attempt to supply the missing link, and the defendant, following the practice stated, moved to strike out Greene’s, alleged . declarations on the ground that they were not connected with the defendant, and no authority to .make them had been shown. This motion was denied and an exception taken.

The objections made to the admission of Greene’s declarations were well taken, and the exceptions to the rulings admitting them and to the denial of the motion to strike out are fatal to the judgment. If any fact material to the. interest of either party rested in the knowledge of the alleged agent, it was to be proved by his testimony, not by his mere assertion. Taylor on Ev., § 540; 1 Greenl. Ev., 114. Greene was finally called by the defendant, and denied that he had any authority to contract for extra compensation or ever did so contract, or that he knew of any fact or thing calculated to create or justify any claim for" extra pay.

In Garth v. Howard, 8 Bing. 453, Chief Justice Tindale observed: It is-dangerous to open the door to declarations of agents, beyond what the cases have already done. The declaration itself is evidence against the principal not given upon oath; it is made in his absence, when he has no opportunity to set it aside, if incorrectly made, by any observation or any question put to the agent; and it is brought before the court and jury frequently after a long ' interval of time. It is liable, therefore, to suspicion originally from ' carelessness or misapprehension in the original hearer; and again to further suspicion from the faithlessness of memory. in. the reporter, and the facility with which he may give an untrue account. Evidence, therefore, of such a nature ought "always to be "kept within the strictest-limits to which the cases have confined it.” In Phillips’ Evidence (C., H. & E. Notes, vol. 1, p. 507), the author, in referring to the above observation* says: “ There is less necessity for resorting to such evidence in the case of living agents ” whose testimony may be procured; and in summarizing the authorities in regard to the admission of that class of evidence (id., p. 513), adds: But it seems to be a more simple rule with respect to admissions, that they are only receivable when there was authority to make them.”

That Oarrere had any real claim against the defendant would seem at least doubtful on a careful reading of the printed case, from which it appears that he was in great need of money and was importuning the firm to assist him, in consequence of certain private troubles; that it did assist him; that he executed to it a general release of all claims, never suggesting the existence of the demand which forms the subject of this suit until he had been discharged by the firm, and all chance of making further appeals to its generosity was at an end.

The plaintiff urged that as the defendant made no request to direct a verdict in his favor, he consented to the submission of the cause to the jury, and cannot now complain of the result.

The defendant made his legal objections as the trial progressed, and as they were decided against him he took the exceptions necessary to preserve his right to review them, and the subsequent submission of the cause followed by the verdict rendered did not eliminate these questions from the case so as to prevent their examination. It is not the usual case wherein the affirmance by the General Term of the City Court prevents us from reviewing the facts or passing on the weight of evidence; but one where the proofs fail to make out a cause of action, thereby presenting a question of law which we are bound to pass upon. Davis v. Spencer, 24 N. Y. 386, 390; Brush v. Lee, 36 id. 49; Draper v. Stouvenel, 38 id. 219; Marvin v. Inglis, 39 How. Pr. 329.

It follows that the judgment appealed from must be reversed and a new trial ordered, with .costs to the appellant to abide the event.

Daly, P. J., and Bisohoef, J., concur.

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