Lloyd's Appeal ( 1880 )

Mr. Justice Gordon

delivered the opinion of the court,

If the contract made betweqn- Thomas J. Lloyd and D. H. Kinkead, the appellee, on or about the 24th of May 1876, was in its terms retrospective, that fact must have been established by some evidence not now exhibited to us. We have examined the testimony as it is found in the record before us with some care, and by it a condition of things about as follows appears : Kinkead was in the employment of Lloyd altogether about one year, commencing on the 15th of September 1875. On the 22d of May following, Kinkead, having for some reason become dissatisfied, abandoned that employment. Soon after this, the agreement, which forms the subject of the present controversy, was made. Its terms are detailed by two witnesses, Thomas Davis and John Gr. Bearer. The first of these says that Lloyd asked him to see Kinkead and induce him, if he could, to return to his employment, and, in the language of the witness, “He said that if he came back, he would pay him the money as he earned it, without regard to any claim he had against him; that he could have it whenever he wanted it, that he did not want Harry to work for him and credit it on anything.” The witness further says that he communicated this to Kinkead, and advised him to return, and that he did go back and remain with Lloyd for a short time. Bearer, the second of the above named witnesses, says he1 heard a conversation which occurred between these parties, and narrates it thus : “ Harry said he wished his money as he earned it, or he couldn’t live. They were talking about Harry’s indebtedness at that time, and Tom and he agreed he wouldn’t take his wages on that. I don’t remember that he said he would give him enough to live on and not credit it on his indebtedness. Harry was to go into the yard and work as he was working before. I heard nothing of that (that he would never collect Harry’s indebtedness of him). That was the particular bargain, that he was to have his wages as fast as he earned them; nothing was said about how often he was to be paid — that was the big trouble between them; it was to be paid just as he earned it. I can’t say how long Harry remained after that. I think it was in May or June this conversation took place.”

This, then, was the bargain between these parties, and we say with Mr. Justice Strong, in Reed v. Penrose’s Executrix, 12 Casey 234, that though a party may, by express contract, waive his right of set-off, and such a contract, founded upon a consideration, would be binding upon him, yet he can be deprived of that right by nothing less than a contract. But the contract in the present case was wholly prospective. Kinkead was to return to his employment with Lloyd, and was to have his wages as he earned them without set-off on his indebtedness to Lloyd. In all the testimony there is not so much as a hint that this contract was intended to affect Lloyd’s right of set-off as to the wages which had been previously earned. Indeed, the principal object at which Kinkead aimed, so far as we can see, was to prevent in the future what had occurred in the past, the application of his wages, or any part of them, to the judgment of his employer. This ho accomplished by the bargain which was made; he returned to his former position, and now, if he gets what he contracted for, he should be content. *

He was entitled to his wages in full, less the payments made upon them from the time he returned to Lloyd’s employment in May 1876, until September 26th of the same year., but from September 15th 1875, to the 22d of the succeeding May, any of his wages remaining due and unpaid, are properly applicable to the Lloyd judgment.

The decree of the court below is now reversed and set aside at the costs of the appellee, and it is ordered that redistribution be had in accordance with the above opinion.