HAWLEY, District Judge
(orally). The controversy between the parties is as to the actual number of days that plaintiff performed work for which he is entitled to recover, and whether the money, [411]*411over and above the amount plaintiff lias received, is due under the terms of the contract. There is no conflict in the evidence as to the facts. It shows that there was no written contract at the time the plaintiff was employed; but after his employment by the agent of the defendant, at the rate of four dollars per day, there was more or less correspondence between the plaintiff and E. H. M. Hill, the secretary of the defendant, with reference to their understanding- of the agreement. From the evidence in this case, I am of opinion that the terms of the agreement must be determined from the correspondence between the parties. This shows that plaintiff was employed and was to be paid for his services at the rate of four dollars per day; that he was to be paid “at the end of each consecutive fourth week of service” the sum of two dollars per day, and the balance of two dollars per day was to be retained as an earnest for faithful services up to the time defendant might resume operations of its business or dispose of its property, when the whole amount that was retained, as above stated, would become due and payable; that at the time of his employment it' was the general understanding that the defendant would resume operations within a reasonable time, or use reasonable efforts to dispose of its property; that in the absence of ¡my express declarations of the pax-ties to that effect, there being no time specified within which operations should be resumed or property be sold, the law presumes that it was the intention of the parties that the contingencies mentioned should occur within a reasonable time. It certainly was not the intention that the defendant might, if it saw fit, so postpone the time, of its own volition, as to deprive plaintiff of his right to recover. Wolf v. Marsh, 54 Cal. 228, 232. Under the agreement between the parties in this case, the debt was absolute, but the time of its payment indefinite.
In Story, Cent. (5th Ed.) § 4(5, the author said:
“Where no time is fixed within which the condition shall be performed, the rule Is that it must be performed within a reasonable time. Of course, no universal rule can be laid down, as to what constitutes reasonable time, which will apply to all cases. The only rule which can be stated is that any delay in the performance of the condition, which operates as an injury to the other party, will be considered as unreasonable. What is such a delay in any particular case must depend upon its peculiar circumstances.”
See, also, Adams v. Copper Co. (C. C.) 7 Fed. (534, 638; Manufacturing Co. v. Hurd (C. C.) 18 Fed. 674, 675; Curtiss v. City of Waterloo, 38 Iowa, 266, 269; De Wolfe v. French, 51 Me. 420, 422; Button v. Higgins, 5 Colo. App. 167, 170, 38 Pac. 390.
Under the conditions, circumstances, and surroundings of this case, it is evident that four years would exceed the limit of a reasonable time.
In Nunez v. Dautel, 19 Wall. 560, 22 L. Ed. 161, the plaintiff, Dautel, on September 10, 1870, commenced an action against Nunez to recover the amount due on an instrument in writing as follows:
“September 1, 1865.
“Due Joseph Dautel or order, $1,610.66, being balance of principal and interest for four years and six months’ services. This we Will pay as soon as ihe croi) can be sold or the money raised from any other source, payable with interest. I. M. jStunez & Go.”
[412]*412The trial court instructed the jury to find for the plaintiff, and the correctness of this instruction was the only point raised on appeal. The court said:
“No time having been specified within which the crop should he sold or the money raised otherwise, the law annexed as an incident that one or the other should be done within reasonable time, and that the sum admitted to be due should be paid accordingly. Payment was not conditional to the extent of depending wholly and finally upon the alternatives mentioned. The stipulations secured to the defendants a reasonable amount of time within which to procure, in one mode or the other, the means necessary to meet the liability. Upon the occurrence of either of the events named, or the lapse of such time, the debt became due. It could not have been the intention of the parties that if the crop were destroyed, or from any other cause could never be sold, and the defendants could not procure the money from any other source, the 'debt should never be paid. Such a result would be a mockery of justice. Hicks v. Shouse, 17 B. Mon. 487; Ubsdell v. Cunningham, 22 Mo. 124. The question of reasonable time, as the case was presented, was one to be determined by the court. When the suit was instituted, more than five years had elapsed from the date of the instrument. This was much more than a reasonable time for the fulfillment of the undertaking of the defendants, and the plaintiff was entitled to recover.”
In Willi ston v. Perkins, 51 Cal. 554, the defendants built a schooner at Vallejo, and employed laborers to whom they gave certificates for payment of certain days’ work performed by them, “when the three-masted schooner now in course of construction by said association is sold.” The court held that the defendants were entitled to only reasonable time in which to finish and sell the schooner, and, that time having elapsed, the plaintiff could maintain his action. In addition to the authorities heretofore cited, see Noland v. Bull, 24 Or. 479, 484, 83 Pac. 983; Randall v. Johnson, 59 Miss. 317; Crooker v. Holmes, 65 Me. 195, 199; Smithers v. Junker (C. C.) 41 Fed. 101, 7 L. R. A. 264.
The excuse sought to be established by the defendant to defeat the plaintiff’s right of recovery herein, on the ground that he was guilty of a breach of trust, in this: that he had appropriated to his own use, without authority, the sum of over $600, — cannot be maintained. Every dollar that plaintiff collected was faithfully accounted for. The defendant having left the plaintiff in such a position that he found it necessary to apply this money on his salary account, in order to subsist until the financial questions were settled, it cannot be said that this appropriation of the. money constituted such a breach as would justify the defendant in refusing to pay the balance due on the contract.
There is another view of this case, which is supported by the evidence, and based upon well-settled principles of the law, that are elementary in their character, which clearly entitles plaintiff to recover four dollars per day during the time that he remained in defendant’s service under the contract. On October 3, 1899, November 17, 1899, and January 5, 1900, the defendant, through its secretary, notified plaintiff that it was compelled to cancel its agreement with him, and instructed him to turn over the property to its agent, Mr. Truman. By the orders contained in these letters, the plaintiff,was discharged from defendant’s service before it had “resdmed operations or disposed of its property.” By voluntarily discharging the plaintiff [413]*413without any just cause, the defendant made it impossible for Mm to remain continuously (as the agreement contemplated) in the defendant’s service until “it.
Free access — add to your briefcase to read the full text and ask questions with AI
HAWLEY, District Judge
(orally). The controversy between the parties is as to the actual number of days that plaintiff performed work for which he is entitled to recover, and whether the money, [411]*411over and above the amount plaintiff lias received, is due under the terms of the contract. There is no conflict in the evidence as to the facts. It shows that there was no written contract at the time the plaintiff was employed; but after his employment by the agent of the defendant, at the rate of four dollars per day, there was more or less correspondence between the plaintiff and E. H. M. Hill, the secretary of the defendant, with reference to their understanding- of the agreement. From the evidence in this case, I am of opinion that the terms of the agreement must be determined from the correspondence between the parties. This shows that plaintiff was employed and was to be paid for his services at the rate of four dollars per day; that he was to be paid “at the end of each consecutive fourth week of service” the sum of two dollars per day, and the balance of two dollars per day was to be retained as an earnest for faithful services up to the time defendant might resume operations of its business or dispose of its property, when the whole amount that was retained, as above stated, would become due and payable; that at the time of his employment it' was the general understanding that the defendant would resume operations within a reasonable time, or use reasonable efforts to dispose of its property; that in the absence of ¡my express declarations of the pax-ties to that effect, there being no time specified within which operations should be resumed or property be sold, the law presumes that it was the intention of the parties that the contingencies mentioned should occur within a reasonable time. It certainly was not the intention that the defendant might, if it saw fit, so postpone the time, of its own volition, as to deprive plaintiff of his right to recover. Wolf v. Marsh, 54 Cal. 228, 232. Under the agreement between the parties in this case, the debt was absolute, but the time of its payment indefinite.
In Story, Cent. (5th Ed.) § 4(5, the author said:
“Where no time is fixed within which the condition shall be performed, the rule Is that it must be performed within a reasonable time. Of course, no universal rule can be laid down, as to what constitutes reasonable time, which will apply to all cases. The only rule which can be stated is that any delay in the performance of the condition, which operates as an injury to the other party, will be considered as unreasonable. What is such a delay in any particular case must depend upon its peculiar circumstances.”
See, also, Adams v. Copper Co. (C. C.) 7 Fed. (534, 638; Manufacturing Co. v. Hurd (C. C.) 18 Fed. 674, 675; Curtiss v. City of Waterloo, 38 Iowa, 266, 269; De Wolfe v. French, 51 Me. 420, 422; Button v. Higgins, 5 Colo. App. 167, 170, 38 Pac. 390.
Under the conditions, circumstances, and surroundings of this case, it is evident that four years would exceed the limit of a reasonable time.
In Nunez v. Dautel, 19 Wall. 560, 22 L. Ed. 161, the plaintiff, Dautel, on September 10, 1870, commenced an action against Nunez to recover the amount due on an instrument in writing as follows:
“September 1, 1865.
“Due Joseph Dautel or order, $1,610.66, being balance of principal and interest for four years and six months’ services. This we Will pay as soon as ihe croi) can be sold or the money raised from any other source, payable with interest. I. M. jStunez & Go.”
[412]*412The trial court instructed the jury to find for the plaintiff, and the correctness of this instruction was the only point raised on appeal. The court said:
“No time having been specified within which the crop should he sold or the money raised otherwise, the law annexed as an incident that one or the other should be done within reasonable time, and that the sum admitted to be due should be paid accordingly. Payment was not conditional to the extent of depending wholly and finally upon the alternatives mentioned. The stipulations secured to the defendants a reasonable amount of time within which to procure, in one mode or the other, the means necessary to meet the liability. Upon the occurrence of either of the events named, or the lapse of such time, the debt became due. It could not have been the intention of the parties that if the crop were destroyed, or from any other cause could never be sold, and the defendants could not procure the money from any other source, the 'debt should never be paid. Such a result would be a mockery of justice. Hicks v. Shouse, 17 B. Mon. 487; Ubsdell v. Cunningham, 22 Mo. 124. The question of reasonable time, as the case was presented, was one to be determined by the court. When the suit was instituted, more than five years had elapsed from the date of the instrument. This was much more than a reasonable time for the fulfillment of the undertaking of the defendants, and the plaintiff was entitled to recover.”
In Willi ston v. Perkins, 51 Cal. 554, the defendants built a schooner at Vallejo, and employed laborers to whom they gave certificates for payment of certain days’ work performed by them, “when the three-masted schooner now in course of construction by said association is sold.” The court held that the defendants were entitled to only reasonable time in which to finish and sell the schooner, and, that time having elapsed, the plaintiff could maintain his action. In addition to the authorities heretofore cited, see Noland v. Bull, 24 Or. 479, 484, 83 Pac. 983; Randall v. Johnson, 59 Miss. 317; Crooker v. Holmes, 65 Me. 195, 199; Smithers v. Junker (C. C.) 41 Fed. 101, 7 L. R. A. 264.
The excuse sought to be established by the defendant to defeat the plaintiff’s right of recovery herein, on the ground that he was guilty of a breach of trust, in this: that he had appropriated to his own use, without authority, the sum of over $600, — cannot be maintained. Every dollar that plaintiff collected was faithfully accounted for. The defendant having left the plaintiff in such a position that he found it necessary to apply this money on his salary account, in order to subsist until the financial questions were settled, it cannot be said that this appropriation of the. money constituted such a breach as would justify the defendant in refusing to pay the balance due on the contract.
There is another view of this case, which is supported by the evidence, and based upon well-settled principles of the law, that are elementary in their character, which clearly entitles plaintiff to recover four dollars per day during the time that he remained in defendant’s service under the contract. On October 3, 1899, November 17, 1899, and January 5, 1900, the defendant, through its secretary, notified plaintiff that it was compelled to cancel its agreement with him, and instructed him to turn over the property to its agent, Mr. Truman. By the orders contained in these letters, the plaintiff,was discharged from defendant’s service before it had “resdmed operations or disposed of its property.” By voluntarily discharging the plaintiff [413]*413without any just cause, the defendant made it impossible for Mm to remain continuously (as the agreement contemplated) in the defendant’s service until “it. resumed operations or disposed of its property,” and the unpaid balance for his services, at the rate of four dollars per day, at once became due and payable, notwithstanding the fact that the contingencies mentioned for its payment had not occurred. This rule has been applied under the civil, as well as the common, law, under a great variety of conditions. In Angelloz v. Kivollet, 2 La. Ann. 652, the conditions of the contract entered into between the parties were that the plaintiff should accompany the defendant to New Orleans, and aid in recovering possession of the inheritance which had devolved upon her, and, as reward for his services, he was to receive a stipulated sum out of the succession. The evidence showed that the plaintiff was extremely attentive to his duties, and rendered promptly and cheerfully every service required of him by his employer. The defendant, however, became dissatisfied, without any sufficient cause, and resorted to various devices to disgust the plaintiff, and induce him to abandon her service. A. few weeks after her arrival in New Orleans she informed the plaintiff, in terms by no means complimentary, that he was incapable of rendering her such services as she needed, that he could leave if so disposed, and that she intended to pay him nothing. Upon these facts the court said:
“Tlie defense mainly relied upon in this court is that the aeiion was premature; that, by the 1enns of the contract, the plaintiff was only to be paid after the succession of Girod had been settled, and the defendant had received her share. * ⅞ ⅞ This defense cannot avail the defendant. By her own acts .she violated and put an end to the contract without just cause, and gave the plaintiff the right, immediately upon his discharge, to exact the entire amount of his wages. He was not required to await the settlement of Girod’s succession before enforcing it.”
It is a general principle of law, as was said by the court in Jones v. Walker, 13 B. Mon. 163, 165, “that he who himself prevents the happening or performance of a condition precedent, upon which his liability, by the terms of the contract, is made to depend, cannot avail himself of his own wrong, and relieve himself from his responsibility to the obligee, and shall not avail himself, to avoid his liability, of a nonperformance of such precedent condition, which he has himself occasioned, against the consent of the obligee.”
The (¡Tieslion remains as to the length of time for wMch plaintiff is entitled to recover. If Mr. Truman had appeared in answer to the letter of October 3, 1899, and demanded that the property he turned over to him, it would have been the duty of plaintiff to have promptly obeyed, and he would not have been entitled to recover any amount for his services after that time. But, from all the facts and circumstances presented herein, T am of opinion that it was his duty to remain until a duly-authorized agent appeared upon the ground, to whom plaintiff was required, by the orders of defendant, to deliver the property. This did not occur until October 28, 1899, when Mr. Grimes appeared at Pittsburg to take possession of the property. I have some doubt as to whether the reason given by plaintiff for not turning over the property to Grimes is sufficient to enable Mm to recover any pay for his services rendered after that date. One thing is certain, viz. that the letter of the defendant dated January 5, 1900, [414]*414is absolute, and that after its receipt plaintiff could not collect any pay for his services rendered after that time. I am, however, disposed to resolve the doubt herein expressed in favor of defendant, and shall, therefore, hold that plaintiff should have turned over the property to Mr. G-rimes, and that he is not entitled to collect anything for his services after that date. This conclusion reduces the amount due plaintiff to the sum of $2,311.89, which amount he is entitled to recover.
Let judgment be entered for said amount, with interest thereon at the rate of 7 per cent, per annum, and costs.