Wagner v. Buttles

• Decision Date: 07 January 1913
• Citation: 139 N.W. 425,151 Wis. 668
• Parties: WAGNER v. BUTTLES.
• Court: Wisconsin Supreme Court

151 Wis. 668

139 N.W. 425

WAGNER

v.BUTTLES.

Supreme Court of Wisconsin.

Jan. 7, 1913.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by Arthur Wagner against M. M. Buttles, impleaded, etc. Judgment for plaintiff, and defendant Buttles appeals. Reversed and remanded, with directions to dismiss the complaint.

This action was brought to recover wages alleged to have been earned between June 16, 1908, and October 3, 1910; the balance sued for being $361. The defendant Buttles was the owner of a large farm, and on April 1, 1907, entered into a three-year contract or lease with his codefendant, by which the latter agreed to work the farm on shares. The plaintiff was actually employed by the defendant Rand, but claimed that he entered the employment under an agreement on the part of the defendant Buttles to see that his wages were paid. The defendant Rand did not appear in the action. The case was submitted to the jury on a general verdict. The court instructed the jury that, unless Buttles agreed to pay Wagner's wages before the latter entered upon his employment and Wagner relied on such promise and extended credit both to Rand and Buttles, there could be no recovery against Buttles. The court said: “You must be satisfied upon this issue by a fair preponderance of the evidence that, before Mr. Wagner entered into the service, Mr. Buttles promised to pay, or in effect see that his wages were paid, for the work which he was performing on the farm. If you are satisfied by a fair preponderance of the evidence that Mr. Buttles did so promise, and he relied upon it and performed work in reliance upon that promise, then he is entitled to recover the amount asked for. If you are not so satisfied, you should find for the defendant.” The jury returned a verdict for the plaintiff for the amount claimed, and from a judgment entered on such verdict the defendant appeals.George H. Gordon, of La Crosse, for appellant.

A. E. Bleekman, of La Crosse, for respondent.

BARNES, J. (after stating the facts as above).

Prior to April 1, 1907, plaintiff worked for a tenant of the defendant Buttles. Rand was about to succeed such tenant on April 1st, and requested plaintiff to continue in his employ. Plaintiff testified that he declined the offer of employment until Buttles went to him and said: “You are acquainted with the stock on the place, and I want you to stay here if you will, and I will see that everything is all right.” This is the only conversation that ever took place between plaintiff and Buttles in reference to employment. After it occurred, according to plaintiff's evidence, he went to Rand and made a contract of hire with him, by which Rand agreed to pay him $35 per month during the so-called eight summer months and $25 per month for the four winter months. This month to month contract of hire was terminated by the plaintiff on September 1, 1907, when he voluntarily quit work. His wages were paid in full by Rand. Some 8 1/2 months thereafter Rand met the plaintiff and said to him, “We want you to come back there and work for us again.” Pursuant to this request, plaintiff returned on June 16, 1908. Buttles was not present when Rand requested plaintiff to return to work, and, so far as the evidence disclosed, he knew nothing whatever about the transaction which led to the second employment. Plaintiff continued to work until October 3, 1910, when Rand quit the farm owing him $361. Plaintiff never received any money from Buttles for his work and never made any demand on him for money until this action was commenced, although he knew that Rand and Buttles were settling up before Rand left the farm.

[1] Either party had the right to terminate the original contract of employment at the end of any month. We can see no escape from the conclusion that the plaintiff effectually terminated it when he quit work October 1, 1907. If he commenced work under that contract on the strength of Buttles' promise, surely that promise ceased to have any force or effect when plaintiff quit work and was paid all that was due him under his contract of hire. If Rand and the plaintiff saw fit to enter into a new contract nearly nine months after the first one terminated, we are at a loss to see how Buttles can be held responsible to the plaintiff simply because he agreed to assume responsibility for the first contract. It is true that Buttles knew plaintiff had returned to work on the farm, but it is also true that, under the lease or contract by which Rand went into possession of the farm, he specifically agreed to pay all labor employed in working it. If one person agreed with a merchant to become responsible for a bill of goods furnished to another while he was performing a certain contract, it would hardly be contended that he thereby became liable for a second bill of goods furnished to the party while he was performing another contract subsequently made. The illustration is quite analogous to the situation in this case. It does not appear that anything was said about wages when plaintiff returned to work, but this does not alter the fact that he went to work under a new contract. The circumstances were such that a jury might be warranted in finding that the parties understood and intended that plaintiff was to receive the same wages which he had formerly been paid. If not, plaintiff could recover on quantum meruit. But in the absence of any participation by Buttles in the making of this second contract, we do not see how any promise on his part to continue his guaranty can be implied. We think the record is barren of any evidence to connect Buttles with this second contract. It appears from the evidence of the plaintiff that Buttles was anxious to have him continue his work because of his acquaintance with the stock; Rand being a new man on the farm. After Rand became familiar with conditions, there was no apparent reason why Buttles should prefer plaintiff to any other employé.

Some slight evidence was offered on the trial tending to show that, as to the plaintiff, Buttles and Rand held themselves out as partners, and plaintiff argues that they are liable to him as such even though they were not partners inter se. It is evident from the manner in which the court submitted the case to the jury that it considered the evidence wholly insufficient to sustain a finding that as to the plaintiff the defendants held themselves out as copartners. The jury was told that, unless they found that before plaintiff entered the service Buttles promised to pay his wages, they must return a verdict for the defendant. We think the circuit judge was correct in concluding that there was no evidence tending to show that the defendants held themselves out to the plaintiff as partners.

[2][3] But one point remains to be considered. If the defendants were partners inter se, the judgment is right, although recovery was not allowed on such ground. The agreement between the defendants falls within a class which the courts have found it difficult to classify. Reasons can be urged why the contract does not create the relation of landlord and tenant as that relation is defined by the common law. Reasons can also be urged to show that the relation of master and servant did not exist, and why the parties were not partners, and why the defendant Rand was not a cropper. Reasons can also be advanced in support of a contention that the contract created each and every of the relations above specified. The New York court has christened this class of agreements “special contracts” (Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415), and our own court and some others have said that they partake of the nature of “an adventure” which entitles the person taking the farm to participate in the profits derivable therefrom (James v. James, 137 N. W. 1094, and cases cited). Some courts hold that agreements of the kind here involved make the parties thereto copartners. Lewis v. Wilkins, 62 N. C. 303;Thornton v. Barber, 48 App. Div. 298, 62 N. Y. Supp. 527;Leavitt v. Windsor L. & I. Co., 54 Fed. 439, 4 C. C. A. 425;Bank of Overton v. Thompson, 118 Fed. 798, 56 C. C. A. 554. The North Carolina decision was not followed in the subsequent case of Day v. Stevens, 88 N. C. 83, 43 Am. Rep. 732. Between the dates on which the two cases were decided a statute was passed which in part at least accounts for the change. Cases holding the contrary doctrine, decided by foreign jurisdictions, are: Cedarburg v. Guernsey, 12 S. D. 77, 80 N. W. 159;Smith v. Schultz, 89 Cal. 526, 26 Pac. 1087;Brown v. Jaquette, 94 Pa. 113, 39 Am. Rep. 770;Williams v. Rogers, 110 Mich. 418, 68 N. W. 240;Randall v. Ditch, 123 Iowa, 582, 99 N. W. 190;Blue v. Leathers, 15 Ill. 31;Shrum v. Simpson, 155 Ind. 160, 57 N. E. 708, 49 L. R. A. 792;State v. Sanders, 52 S. C. 580, 30 S. E. 616; Gurr v. Martin, 73 Ga. 528; Romero v. Dalton, 2 Ariz. 210, 11 Pac. 863; and Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415. The terms of the contracts involved vary considerably in these cases. Perhaps the one coming nearest to the contract before us is...