
    Monell vs. Burns.
    Where the plaintiff contracted to work for the defendant for a certain period at certain wages per month, and it was part of the agreement that if either party became dissatisfied he might abandon the contract, and the plaintiff quit before the time expired without alleging any dissatisfaction, but on the pretence that he had other business to attend to; held he could not recover for what he had done.
    Where the plaintiff had a claim for labor against the defendant, which the latter resisted on the ground that the work was performed under a contract to labor for a specified time, which the plaintiff had violated, and the parties had an interview in which they agreed upon the time which the plaintiff had labored and upon the amount paid on account, and the defendant offered to pay the balance at the contract price, deducting a certain amount for his damages on account of the plaintiff’s breach of contract, and the plaintiff refused to make the deduction, upon which they separated; held, that the jury could not find a waiver by the defendant of the contract from what took place at that interview, and that a charge from the court that they might consider the evidence for that purpose was erroneous.
    Error to the Orange common pleas, to review a judgment in a suit in which Burns was plaintiff and Monell was defendant, which arose in a justice’s court and was tried in the common pleas on appeal. The declaration was for work and labor, and non-assumpsit was pleaded.
    It appeared that in the latter part of March, 1844 the plaintiff agreed to work for the defendant on his farm for seven months at ten dollars a month. There was some evidence, though slight, that if either party became dissatisfied he should have a right to abandon the bargain. The plaintiff commenced work about the time the agreement was made, and left about the middle of October following, without the knowledge of the defendant, savins: that he had some other business to attend to and must go. Early in November following there was an interview between the plaintiff and defendant with a view to an adjustment of the plaintiff’s claim. The substance of what took place at that time is stated in the opinion of the court.
    The court charged the jury that if the contract bound the plaintiff to work seven months, still, if the defendant knew at the time of making the contract and afterwards that the plaintiff did not so understand their agreement, then the plaintiff was not bound by it; because he must have been misled or deceived in the import of the particular words used in making it; all of which was for the jury to determine upon the evidence. The court also advised the jury that they were to consider whether the defendant had not waived the contract at the time of the attempt to settle spoken of, and whether there had not been at that time a settlement as to the time the plaintiff had worked and the aitiount of the payment, and whether the only matter left open at that time was not the amount of damages on account of the plaintiff’s having quit before his time was up, and that if the jury so found they were to ascertain the amount of such damages and to deduct the same from what would otherwise be the balance. The defendant excepted to this charge, and the jury found a verdict for the plaintiff, on which the court rendered judgment. A bill of exceptions was signed and the defendant brought error.
    
      Monell & Dunning, for the plaintiff in error.
    
      Fullerton & Fowler, for the defendant in error.
   By the Court, Beardsley, J.

These parties made an ab solute agreement that the plaintiff should work for the defendant seven months at ten dollars a month; or that he should do so unless one or the other of the parties became dissatisfied. I think the agreement was an absolute one, although, as the case is now presented, it is of no consequence whether it was absolute or upon the condition stated, for it is not pretended that the plaintiff brought the contract to a close in consequence of any dissatisfaction on his part. The plaintiff labored, in pursuance of this contract, for about six months and a half, when he quit; not on account of dissatisfaction, but because, as be alleged, he had business to attend to. Upon this state of facts it is entirely settled that the plaintiff could not recover for the work he had done. (Lantry v. Parks, 8 Cowen, 63.)

The plaintiff sought to recover on one of two grounds; first, that he had not made a contract for seven months, or had been deceived and misled in regard to its terms; so that, in reality, it was no contract. Or, secondly, that the defendant had waived full performance of the seven months’ work, and therefore the plaintiff showed a good right of action.

Of the latter there was no evidence whatever, and the point should not have been submitted, as it was, to the jury for them to pass upon. It is true that some two or three weeks after the plaintiff had violated his contract, by abandoning work for the defendant, the parties were together, and were engaged in an effort to adjust the matters in controversy between them. Had they gone through and completed the adjustment, no doubt both would have been bound by what was done; but this they failed to effect, and the effort at a compromise amounted to nothing final between the parties. They agreed that the plaintiff had worked six months and a half, and had been paid a certain amount. The plaintiff then proposed that the amount paid should be deducted from the amount which the labor would come to at the contract price, and the balance be paid to him. On the other hand_the defendant proposed that an allowance of five dollars should be made by the plaintiff, for damages, in consequence of his quitting work before the seven months were up. This the plaintiff refused to do, and said he would allow nothing. The defendant insisted that the plaintiff had forfeited all right under the contract, and could not recover a cent; but the plaintiff said he would at least make the effort; and in this state of the attempt to effect a compromise the treaty broke off, and the parties separated. This mere effort to settle had no effect whatever on the rights of the parties. Had they agreed on any sum as a balance, or agreed that no. advantage should be taken of the forfeiture which the. plaintiff had incurred by his voluntary abandonment of the service, of the defendant, a different case would have been presented. But no result was attained by the effort to. make a settlement, and consequently, each party stood on his rights as they were before the. effort was made. The court erred in submitting to the jury whether the contract, had not been waived by. this effort- to make a settlement. There was no evidence which looked like a waiver, or upon which such a fact could have been found, and the question should not have been put to the. jury for a decision. On this ground the judgment must be reversed.

I do not well understand what the court intended to. leave to the jury about a contract to serve for seven months having been made, and in regard to the plaintiff’s not being bound by it. Upon the evidence, as. stated, there is not the least room to doubt that the contract bound the plaintiff to labor seven months, unless he- had a right to quit if dissatisfied. Supposing this condition was in the contract, he did not pretend to quit for that reason, but for another; he had business which required his attention. There was no evidence of any misapprehension by the plaintiff in regard to the import of any particular words in the contract, or that he had in any respect been deceived or misled on any such subject. There was then no such ground as the first branch of the charge points to, for avoiding the obligation, of the plaintiff to serve out the seven months; no ground for saying he had been deceived or misled in any respect. Besides, this part of the charge is inconsistent ;• it assumes that the contract was made so as to bind both parties, and then charges that the plaintiff was not bound by it if he understood it in a manner different from what it was; this being known to the defendant. The reason why the plaintiff in such case would not be bound, was stated to be that he must have been deceived or misled in the import of particular words used.

If the court meant that the jury were to determine whether the parties agreed that the plaintiff should labor for seven months, that would have been well, if there had been any doubt about it. And if it had been material to ascertain whether the contract authorized either party to bring it to a close, if dissatisfied, that must also have been left to the jury. But as the plaintiff quit for another reason, and not on account of dissatisfaction, this inquiry was not material in any point of view. As I see no evidence which would authorize the jury to hold that the plaintiff was not bound to work for seven months because he had been deceived or misled, I think the court also erred in this part of the charge.

Judgment reversed.  