Hinman v. Conard

CRAIL, P. J. This is an action to recover for services rendered. The complaint contains three counts—one on an open book account, one for the reasonable value of the services, and the third on an express contract. The answer of the defendant was first a denial, and second a separate and affirmative defense of estoppel. The court found for plain[541]tiff on the second count. It is from this judgment the appeal is taken.

Defendant on August 1, 1932, employed plaintiff to work as a gardener and plaintiff’s wife to work as a domestic and agreed to pay plaintiff $100 monthly and plaintiff’s wife $50 monthly. The plaintiff and his wife were also to have the use of a four-room house on the defendant’s premises, together with water and light. This agreement was carried out by the parties during the months of August and September. There is a sharp conflict in the evidence as to what then happened. The plaintiff contends that the defendant told him defendant’s income had stopped temporarily and that he could pay the plaintiff’s wife her $50 per month, and if they could get along on that it would be a matter of six months or a year, and then when his income started again he would make up to the plaintiff his $100 per month. The defendant, on the other hand, contends that he found plaintiff was wholly without experience as a gardener and that when defendant discovered this fact plaintiff agreed to the reduction in salary without any agreement whatever as to making up the $100 per month, the plaintiff’s wife to get the $50 per month and he and his family to have the use of the home. Defendant paid plaintiff’s wife $50 per month during the entire term of the employment which terminated July 15, 1935, and furnished the home. Plaintiff received no monetary consideration from defendant from October 1, 1932, to April, 1933. Commencing with May, 1933, and continuing to July 15, 1935, defendant paid plaintiff and plaintiff received the sum of $20 monthly. The plaintiff and his wife continued to work for the defendant and they saw and conversed with the defendant practically every day during the thirty months to the end of the hiring and accepted his checks and the use of the home each month without any protest or any demand for back wages during all said time, and the plaintiff never made any demand for the back payments until after he was finally notified of his discharge. The defendant contends that during all said time the plaintiff by his acts and conduct and conversations led the defendant each month to believe that he was accepting his payments in full to date, and had the defendant not-believed he was paying them in full he would have dismissed the plaintiff and not obligated himself for the higher wage. The importance of the defense of estoppel is apparent, but the trial court