Butler v. Rice , 24 N.Y. Sup. Ct. 406 ( 1879 )

Mullin, P. J. :

The use of the land on which to raise a crop of potatoes was a part of the compensation that plaintiff was to receive for his services for the defendant for the term of eight months. When he abandoned defendant’s employ without the fault of the defendant, all right to compensation ceased, and he became liable to defendant for such damages as he sustained by reason of the breach. The right to the use of the land ceased at the same time as his right to the twenty dollars per month.

It would not be seriously claimed that, after a breach of the contract the plaintiff was entitled to any part of his wages, not even that which he had earned before the breach.

Had the agreement between the parties been, that as part of plaintiff’s compensation for his services, he should have the use of defendant’s horse, and had he abandoned defendant’s employ without cause before the expiration of the term for which he had agreed to work for defendant, it would not be claimed that his right to retain the horse did not instantly cease, and the right of the defendant to its possession become perfect. I am unable to perceive any distinction between the right of the defendant to the horse, and his right to the possession of the land and whatever was growing upon it.

Could the interest of the. plaintiff in the land be considered strictly a tenancy at will, he would be entitled to the potatoes. Chancellor Kent in his Commentaries (vol. 4, p. Ill) says: “It was determined very anciently that estates at will were equally at the will of both parties, and neither of them was permitted to exercise his pleasure in a wanton manner and contrary to equity and good faith. The lessor could not detennine the estate after the tenant had sowed and before he reaped, so as to prevent the necessary ingress and regress to take the emblements.

“ The possession of the land on which the crop is growing continues in the tenant until the time of taking it arrives.”

But this proposition has no application to the case of a tenant who has himself terminated the tenancy without the fault of the lessor. This was directly held in McGee v. Gibson (1 B. Munroe, 105); sec, also, Cruise on Real Property (title 9, chap. 1, § 12); Washb. on Real Property (vol. 1, p. 584); Coke on Litt. (55-56).

The judgment in the former suit brought by defendant against plaintiff is not a .bar to this action. In that action defendant claimed to recover damages for plaintiff’s breach of the contract to work for defendant eight months. The value of the use of the land, prior to the breach, was not recoverable as damages for the breach of the contract. The use was part of the wages to be paid, and the use could not be recovered for, any more than money paid for wages earned could be recovered back. There is nothing in the complaint in the former suit, nor in the evidence before the justice, tending to show that defendant sought to recover for the use of the land, subsequent to the breach of the contract.

The defendant in his suit against the plaintiff recovered for the seed potatoes that plaintiff planted on the land in question, and for work done upon it in preparing it for the crop. The plaintiff became indebted to the defendant for these things months before he, (plaintiff ), abandoned the contract, and defendant did not lose his right to recover for them, because plaintiff subsequently violated his contract. If there is any injustice in the claim, plaintiff has no one to blame for it but himself. Piad such a claim been made in the complaint, or proved on the trial, the judgment would have been a bar to this action. It is unnecessary to consider the other exceptions to the rulings on the trial and to the charge ; the judgment for the reasons already suggested is erroneous and must be reversed.

Judgment reversed, and new trial ordered in the Comity Court of Allegany county.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment and order reversed, and new trial ordered in Allegany County Court, costs to abide event.