McGovern v. Western Railroad , 28 How. Pr. 493 ( 1864 )

By the court, The referee has found among other facts, in substance, that the plaintiff during all the time he worked for the defendants was hired by the month, at from $20 to $24 per month, and received the pay and signed the pay rolls ; that Gray was the general superintendent during all the time the plaintiff was in the defendants’ employment; that the authority of Day, Lee/ and Knight to employ workmen was subject to Gray’s approval, and that Gray never authorized them to pay the plaintiff any greater sum than he was receiving as his month’s wages; that the plaintiff was informed soon after he commenced watching Sunday nights that his compensation would not be increased, and that he might leave the defendants’ employment if dissatisfied, and that he continued watching Sunday nights after he' was so informed; that the employment of the plaintiff to watch Sunday nights, and to pay him an extra compensation therefor, was .without the consent or approbation of the general superintendent of the defendants, and not binding upon them, and that the plaintiff was not entitled to recover for such extra work; that the plaintiff continuing to work after he was informed that his pay or wages would not be increased by reason of stich- extra work, and receiving his pay every month to the time he left the employment of the defendants, is evidence that he did not expect any more or greater pay than he was receiving.

Ingalls, J.

If the referee has found the facts correctly, and where there is a conflict in the evidence this court must assume that he has, I think this cause was properly decided. If Lee was not authorized to employ the plaintiff to render the extra service, and bind the defendants to pay therefor, the plaintiff could have no legal claim against the defendants unless they adopted and ratified the act of Lee, thereby creating a liability. Whether Lee possessed that authority, or whether the defendants ratified such employment, were questions of fact, upon which the referee has found adversely to the plaintiff, and the evidence is not such as to justify this court in interfering with the determination of the referee upon those questions. The evidence shows that soou after the plaintiff’s employment commenced he applied for pay for such extra service, and was informed that it was unauthorized, and would not be acceded to by the defendants, and if persisted in by the plaintiff, he was at liberty to leave the defendants’ employment, after which the plaintiff continued rendering the same service, and receiving and receipting his monthly wages, without any recognition by defendants of this claim for extra compensation. Under such circumstances, I think the plaintiff must be held to have waived such claim, and is thereby concluded by such waiver. When he was informed by the superintendent that if the claim for extra pay was insisted upon by the plaintiff, he would not be continued in the defendants’ service, the plaintiff was put to an election, either to abandon the employment or continue upon the terms proposed by defendants, and having continued, and accepting the monthly wages and receipting the same, the referee was justified in holding him concluded by his own conduct in regard to such extra compensation.

While an ordinary receipt for money is the subject of explanation, and may not conclude a party, yet the explanation should be such as to leave no reasonable doubt that it was not intended to embrace the claim sought to be recovered. In this case the evidence is far from producing that effect—goes far to support the receipt, and renders it conclusive. The referee committed no error in striking out the evidence of Hurlburt in reference to Lee’s hiring the plaintiff, as it was a declaration to a third party, not made to or in the presence of the plaintiff, nor was his name mentioned, nor did the declaration accompany any authorized act, to explain or characterise which such declaration was necessary.

The referee properly excluded the evidence of Clarke that he took the place of the plaintiff a t the compensation of $30 per month, and that there was no increase in the wages of other laborers. This evidence was wholly immaterial so far as the plaintiff was concerned, as the company were at liberty to employ whoever they chose, and to pay whatever sum they were disposed to, and the evidence if admitted, could not have properly affected the liability of the defendants to the plaintiff. The objection was not well taken to the question put to the witness Gray, as to Lee's authority to employ plaintiff. The objection was too general—being aimed at form and not substance—the plaintiff should have specified the defect, so that the defendants could have changed the form of the question. (12 N. Y. 451; 5 Barb. 406 ; 17 Wend. 143.) If the plaintiff intended by the objection that the question was leading, that was matter of discretion with the referee.

The referee properly overruled the offer of the plaintiff to.prove that he was not paid the usual wages of men who watched every night in the week. The same reasons may be assigned in support of this decision of the referee as that in excluding the evidence of Clarke. It is quite possible that the plaintiff has not received an adequate compensation for his services; however that may be, this court cannot re-try the cause, its province being merely to review the proceedings of the referee, to ascertain whether any error has been committed by him upon the trial; if none are discovered the judgment must be affirmed.

Having arrived at the conclusion that no error was committed by the referee, the judgment must be affirmed with costs.