
    Alphonse Blondel and Wife vs. Charles Le Vesconte.
    June 7, 1889.
    Parol Agreement — Part-Performance—Subsequent Written Contract. After a contract for service, made orally, had been partly performed, a written agreement was executed, specifying the.term of service, includ- . ing the past as well as the future time, and stating the compensation. Held, that the written agreement should be deemed to embody the con- . tract relating to the past as well as to the future service.
    Appeal by defendant from an order of the district court for Dakota county, Crosby, J., presiding, refusing a new trial after a verdict of $147.48 for plaintiffs.
    
      Leon T. Chamberlain, for appellant.
    
      Hodgson & Sehaller, for respondents.
   Dickinson, J.

On the trial it appeared that the original agreement was made orally about July, 1886. The evidence was conflicting as to the terms then stated and agreed upon, and as to whether the service commenced in August or September, 1886. On the 1st of March, 1887, a formal written instrument was made out and signed by the defendant and by the plaintiff Alphonse Blondel, the other plaintiff being his wife, expressing the agreement that, for the consideration of $300, the plaintiffs should serve the defendant for one year, commencing September' 3, 1886, and ending September 2, 1887. No point is made on the ground that the wife did not sign this agreement, and, in view of what is alleged in the reply, this must be regarded as admitted to be the agreement of both the plaintiffs. In the general charge of the court to the jury no effect was ascribed to the written agreement. The verdict was made to depend upon what the jury might determine to have been the original oral agreement; the question being also submitted to the jury as to whether the plaintiffs were-unjustifiably discharged from the service, or abandoned it of their own accord, without sufficient excuse. The court refused a request-of the defendant to instruct the jury that “the contract made the 1st-of March, covering the past and future services, was valid and binding upon all the parties to this suit for the time included therein.”' The jury ought to have been so instructed. No question being made as to that instrument being the written agreement of the parties, effect should have been given to it as such. Presumably this was made for the purpose of embodying and evidencing in the more certain form of a writing what had been agreed upon by the parties. If in any respect it differed from the original agreement, that does not-affect the case, for it was within the power of the parties to modify the original agreement. We are of the opinion that a new trial must-be granted. We will add that the evidence justified the defendant’s request to charge that, if the defendant threatened to discharge Blondel “unless he worked,” this alone would not be a discharge.

Order reversed.  