
    John Thompson vs. Ex’rs. of Robt. Nesbit.
    ■Upon a contract with an agent to act as overseer for § 500, the employer wrote these words, “ I also fm+her say that should the above named T. in my opinion, merit or dese vemore than §500, I u'.ll g've him more.” The court held it was voluntary, and set aside a verdict • allowing more than §500.
    Tried before Mr. Justice Gantt, Georgetown.
    THIS was an action brought to recover wages as an overseer. It was proved that the plaintiff lived asan overseer on the plantation of the testator for twelve, months ; that by the original contract, the wages were to be eight hundred dollars. But it was shewn that after remaining a short time on the plantation under that agreement, the plantin' misbehaved and abused his employer ; in consequence of which he was discharged. But the testator, Dr. Nesbit, agreed to restore him upon the condition that he would rescind the former agreement, as to the amount of wages, and be content with the sum of five hundred dollars. This second contract, which was reduced to writing, was produced in court and proved. The payment of four hundred dollars was also proved. It appeared in evidence that the plantation was, during the superintendence of the plaintiff, generally in indifferent order, and that the crop was not great. Something was said about a proposition to compromise having been spoken of by one of the executors at six hundred dollars, and never acceded to by the plaintiff.
    The judge charged that the jury ought not to find more than at the rate of $ 500 for the plaintiff
    They however found at the rate of $ 600.
    The defendants now moved for a new trial, on the following ground :
    1st. That an express contract for five hundred dollars was proved, and the jury allowed to the plaintiff, notwithstanding, six hundred dollars.
   Mr. Justice Richardson

delivered the opinion of the court :

The agreement to pay five hundred dollars was set forth in a letter by the testator, and the terms accepted by the plaintiff But at the foot of the agreement, these words were added, to wit:

I also further say, that should the above named M. Thompson, in my opinion, merit or deserve more than five hundred dollars, I will give him more.”

(Signed,) Rob’t Nesbit.

And the question submitted is, whether the executors are bound to pay more than the five hundred dollars ?

If is evident from the restrictive words, in my Opinion merit,” &c. that the testator meant no more than td hold out the prospect of an indefinite reward upon the contingency of the defendant’s giving him satisfaction. — ■ He meant to afford an incentive to activity and good conduct ; and the very object of the hoped for reward, requires that it should depend upon the will and opinion of the promiser. To make such a contingent and imperfect promise a binding obligation in law would be to destroy the end for which the lure was held out. After having once turned off'his overseer for misbehavior, Nesbii reasoned, naturally, from what had passed, and contracted anew, with greater caution drawn from experience, and therefore resolved to beep the alluring bait within his own control. His policy is obvious, and is not unlike that observed by a skilful fowler towards his trained hawk, whose instinct being known, is therefore kept alert by hunger until the game be taken.

JDunkin, for the motion.

Simons, contra.

My falcon now is sharp, and passing empty,
And till she stoop, she must not be full gorged,
For then,-she never looks upon her lure.

The jury were therefore mistaken in forcing the payment of what was intended as a gratuity, to be apportioned by the employer, according to the conduct and success of his overseer; and a new trial is granted, unless the plaintiff will release one hundred dollars from the amount of the verdict.

Justices Johnson, Noti and Huger, concurred,  