Webb v. Lees

Opinion by

Mk. Justice Mitchell,

The first assignment of error must be sustained. Plaintiff testified that he had had a six months’ engagement at the Steer Mills, which he had given up to enter defendants’ service, and on this fact it was argued to the jury and submitted to them in the charge, that it would be unreasonable to suppose he would have given up that position for a contract such as defendants alleged he made with them. The truth of his alleged agreement with the Steer Mills was therefore relevant to the issue, and the answers of the treasurer of the mill company to the 7th and 8th interrogatories bore direct^ on this subject. They should have been admitted.

The third assignment must also be sustained. The plaintiff and defendant had given conflicting testimony as to the contract, and, after stating to the jury the argument that it would be unreasonable to suppose plaintiff would do as defendants claimed, the learned judge told the jury also to consider any other testimony in the case, and added “ If you believe the evidence of the witness Barker, that evidence may throw light upon his (plaintiff’s) motive and conduct.” Now Barker had testified directly as to the contract. Whether his testimony was accurate or not was a question for the jury affecting his credibility, but if they believed him, he proved the contract as defendants alleged it, affirmatively and conclusively, and to say of his testimony that it might “ throw light ” on plaintiff’s motive and conduct was not a full and adequate presentation of its bearing on the case. It tended to divert the attention of the jury from the effect of Barker’s testimony on the very point of the issue, the contract actually made by the parties, to its effect on the mere argument what it was reasonable to suppose the plaintiff would have done.

We are obliged also to hold that the fact of plaintiff’s turning in his time and taking his pay by hours, and its bearing on the issue, were not adequately presented to the jury. They were told that it was “ a fact to be considered by you, which may give light in determining what the contract really was. . . . You will however be careful to take the plaintiff’s answer to it, because he said that he gave in that time for the purpose of showing, not what time he made particularly, but the time of the mill, ” etc. This was not only passing too lightly over what should have been the controlling evidence in the case, but immediately neutralizing its effect by an apparent judicial sanction of an explanation that does not explain. Plaintiff’s version of the contract was that he was to have $35.00 a week, without regard to the hours he worked. It is hardly consistent with this that for the weeks in which he worked more than sixty hours he dreAV more than $35.00 pay, but even if this be explained as overwork specially overpaid, and therefore not absolutely irreconcilable with the contract alleged, there is no explanation at all of the acceptance for a week in which there were less than sixty hours of work, of an amount of pay the exact proportion of $35.00 that the number of hours turned in by plaintiff himself were of sixty.

Wages are paid at stipulated times, weekly monthly or otherwise according to custom or contract. It is not the custom between employers and employees to take or give formal receipts especially for weekly wages, and therefore the books and accounts where there is no reason to suppose they are improperly kept, and aboAre all the acquiescence of the parties for any continued length of time are usually the best evidence attainable of tbe contract. Courts and juries must recognize that business is done in this way. When therefore an employee is shown to have accepted wages from week to week for a period of months at a rate in accordance with bis own returns of time, it is convincing evidence that he was to be paid according to time and not only should it be so set before the jury but the jury should not be permitted to disregard it, in the absence of an explanation equally clear, complete and convincing, and made out by evidence that does and ought to carry conviction. The principle of McConnell’s Ap., 97 Pa. 81, applies with great force to such a case. The sixth assignment is sustained.

Judgment reversed and venire de novo awarded.