Chipman v. Stansbury

16 Md. 154, 1860 Md. LEXIS 57

• Court: Court of Appeals of Maryland
• Decided: June 15, 1860
• Status: Published

Opinion

Tuck, J.,

delivered the opinion of this court:

The first prayer of the appellant is obviously against the intent of the Act of 1825, ch. 117.

We are not prepared to say that, under the circumstances of this case, the defendant could escape payment of the compensation he had agreed in writing to pay, even if the services were not rendered, the last year of the employment, as efficiently as before. He had reserved the option of discharging Cass, but he did not; on the contrary, he was allowed to attend the factory as he was able, and even when confined at home, the defendant constantly consulted him, thereby recognizing that he was still in his service. In such a case, it would be difficult to effect a settlement of accounts, on the principle of allowing him for his time during such consulta.tions, or by estimating the benefit conferred on the defendant* because of the impossibility of ascertaining the value of the advice and suggestions furnished in working machinery, of whiclp Oass was himself the inventor; and if services rendered at the shop were taken as the sole basis of settlement, the defendant would obtain the benefit of this advice for nothing. The parties themselves appear to have considered this, for they mutually rescinded the written contract by a new agreement, according to Cass’s statement, (which, not being objected t.o, is to be considered as evidence,) by which he was to receive a fixed compensation per week, “till he was able to resume work. ’ ’ The date of this does not appear* but the jury may have given their verdict, according to that rate, for the time that Cass was unable to superintend the work in person; the verdict is for less than the amount claimed by the account. At any rate, the second prayer should have been confined to compensation under the original agreement, to prevent the jury from being misled, because* if granted, and they had applied that rule of settlement to the second agreement, by allowing Cass only payment, by the week, for such time as he was able to attend personally to the defendant’s business, his estate would have been deprived of the benefit of Shannon’s proof as to that agreement. The prayer being general in its application to the case, and not indicating to which of the contracts it was intended to refer* was properly refused.

(Decided June 15th, 1860.)

Judgment affirmed.