Peterson v. Mayer
| Decision Date | 01 July 1891 |
| Citation | 49 N.W. 245,46 Minn. 468 |
| Parties | Frank G. Peterson v. Joseph H. Mayer |
| Court | Minnesota Supreme Court |
Appeal by defendant from a judgment of $ 154.51, in the municipal court of St. Paul, ordered and entered on the pleadings.
Judgment reversed.
A. E Bowe, for appellant.
Henry & R. L. Johns, for respondent.
The allegations of the complaint are that the plaintiff performed labor and work for defendant for seven and a fraction months at an agreed sum per month, payable at the end of each month. The answer admits the employment at the sum alleged for each and every month that plaintiff should work for defendant, and that the plaintiff worked the length of time stated, but alleges, by way of defence, that during all the time of his service the plaintiff stole and appropriated to his own use large sums of defendant's money which came into his hands in the course of his employment, and that, as soon as defendant discovered the fact, he discharged the plaintiff from his service. Upon the pleadings, therefore, the contract must be taken to have been a hiring by the month or from month to month, the wages being due and payable at the end of the month. Judgment having been ordered for plaintiff on the pleadings, it must be taken as true, as alleged in the answer, that during all of the time of plaintiff's service, viz., during each and every one of the months that he was in defendant's employment, he was constantly engaged in embezzling his employer's money.
While the whole services were not performed under one entire contract, yet, as to each and every month by itself, the contract was an entire one, viz., to work an entire month for an entire price. A contract to pay a certain sum for a month's service is as entire in its consideration as is a contract to pay a certain sum for a single chattel. Beach v. Mullin, 34 N.J.L. 343. Therefore to entitle plaintiff to recover the specified wages for any one month, he must have substantially performed the contract of service for that month. According to the settled doctrine of this court, had plaintiff, before the expiration of the month, abandoned the service without excuse, and by his own wilful fault, he could have recovered nothing for the portion of the month he worked, because he would not in such case have performed his contract. Nelichka v Esterly, 29 Minn. 146, (12 N.W. 457;) Kohn v. Fandel, 29 Minn. 470, (13 N.W. 904.) The same result would have followed, and on the same ground, had the defendant during the month, for good and sufficient cause, discharged the plaintiff from his service. But it was an implied condition of the contract that plaintiff should serve the defendant faithfully and honestly. Although only implied, this was as much a part of the contract as was the express condition as to the time of service,...
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