
    Joseph Genco, Appellant, v. Herman E. Remington, Respondent, Impleaded with Frank S. Peek.
    
      Contract to pick peas for a canning factory — money paid by third, parties to the contractor for work done by him for them during the pea picking season, at times when there were no peas to be picked for the canning factory — whether it is chargeable to him in reduction of the amount coming to him, under the contract is a question of fact.
    
    (Jpon the trial of an action, it appeared that the plaintiff entered into an agreement with the defendants, who operated a canning factory, whereby the plaintiff was to secure." sufficient help in time to take cote of such crops as parties of the second part may have for canning purposes.” The agreement provided that the plaintiff’s compensation should be "fifteen dollars per week for looking after the help, work to commence June first, 1902, and to continue through pea picking time.” The defendants themselves raised peas and the- farmers in the vicinity of their factory also raised peas. The plaintiff furnished the necessary laborers who remained through "pea picking time.” The defendants did not raise sufficient peas to occupy the entire time of the laborers or of the plaintiff, and when the defendants had no peas ready to be picked the farmers employed the laborers, and also engaged the plaintiff to superintend ■ such laborers. The defendants took no part in the transaction between the farmers and the laborers and the plaintiff, and, although they were informed thereof, they made no objection thereto, nor any claim to be entitled to the compensation which the plaintiff received from the farmers. The plaintiff kept track of the growth of the defendants’ .peas and when they were ready for canning caused the laborers to pick them. One of the defendants paid the plaintiff his part of the agreed compensation for the time during which the plaintiff worked for the farmers, and the other defendant promised to pay his part of the compensation in the future, but afterwards, when the plaintiff’s contract period expired, asserted the claim that the money which the plaintiff received from the farmers (which was in excess of the money claimed by the plaintiff to be due to him from the defendants) belonged to the defendants, whereupon the plaintiff brought the present action.
    
      Held, that it was improper for the court to nonsuit the plaintiff;
    That the question whether he was entitled to recover from the defendants compensation at the agreed rate for the time during which he worked for the farmers was at least a question of fa.ct for the jury to determine.
    McLennan, P.-J., and Williams, J., dissented.
    Appeal by the plaintiff, Joseph Genco, from a judgment of the Supreme Court in favor of the defendant Herman E. Remington,, entered in the office of the clerk of the county of Erie on the 3d day of February, 1904, upon the dismissal of the complaint as to the said defendant by direction of the court after a trial at the Erie Trial Term. .
    
      Wallace Thayer, for the appellant.
    
      Thomas H. Dowd, for the respondent.
   Spring, J.:

The defendants operated a canning factory in South Dayton, ,Cattaraugus cotinty. The plaintiff entered into a written agreement with them in March, 1902, whereby he. was to secure “ sufficient help in time to take care of such crops as parties of the second part may have for canning purposes.” The compensation" of the laborers to be secured by the plaintiff Was fixed in the agreement, and also his own at “ fifteen dollars per week for looking after thd help, work to commence June first, 1902, and to continue through pea picking time.” _ •

The defendants raised peas of their own, and in addition the farmers in that vicinity also raised them for the factory. Pursuant to the agreement, the plaintiff procured about 100 hands, and they were at South Dayton by the time provided, in the agreement, and remained through pea picking time.” It also appears that defendants did not have sufficient peas to occupy the entire time of the laborers or of the plaintiff. ■ The peas of the defendants did not' all become suitable for canning, at the same time. When they had no peas ready to be picked" the laborers hired by them were employed by the farmers, and the plaintiff was also .engaged by the latter to superintend these laborers. The defendants acquiesced in this employment. They did not hire out the laborers or the plaintiff to the farmers, or arrange for any compensation to be paid to them. There was no work to be done for the defendants, and it was for their benefit to have the farmers employ the plaintiff, and his hands, for it kept them at work and supplied the canning factory with peas to be canned.. The defendants^ however, did not take any part in the transaction between the farmers and. the laborers and the plaintiff. The farmers paid the plaintiff for the services he rendered them, and upon proof of that fact, and it appearing that the amount so received by him wasvin excess of the sum claimed to be his due from the defendants, a nonsuit was granted.

We think the nonsuit was error. The whole purpose of the ¡agreement with the defendants was to insure the picking of their peas. This was accomplished. All of the peas they raised were picked, and the work for the farmers was done when the defendants liad no employment for the plaintiff or for the laborers he furnished. He asked the defendants if they had any work for the help and the •defendants said they had none, and the plaintiff thereupon informed them that he would work for the farmers. They raised no objection to this.

Undoubtedly the time of the plaintiff belonged to defendants, so far as it might be necessity for the performance of his contract with them. It is not claimed that he failed in his obligation to them and to his engagment with the farmers. They did not hire out the plaintiff to them, or inform him that what he earned outside must be applied on the compensation which they had agreed to pay him, nor did they make any claim against the farmers. All this time the plaintiff kept track of the- growth of the peas of the •defendants, and when they were ready for the factory he caused the laborers to pick them. To comprehend the situation it is necessary to keep in mind that the defendants had one object in view, and that was to gather their own peas in time, and, if the story of the plaintiff is to be .believed, that was done.

The subsequent conduct of the defendants confirms the position of the plaintiff. Peek, one of the ■ defendants, paid his part of the agreed compensation due the plaintiff, and said Remington, the respondent, must pay the balance. Remington told the plaintiff he was a “a little short — yon will get your pay by and by.” It was •not until the plaintiff’s time was up that the respondent claimed the money he received from-the farmers belonged to the defendants.

We think under all the circumstances there was at least a question of fact for the jury.

All concurred, except McLennan, P. J., and Williams, J., who •dissented on the ground that the plaintiff, having rendered the services sued for but once, and having been paid therefor by other parties, is not entitled to receive therefor of the defendants.

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