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Supreme Court of Illinois.

DECEMBER TERM, 1847.

ABRAHAM BADGLEY v. ELI HEALD.

A contract to labor six months for eight dollars a month, is an entire contract; and to entitle the party to recover for his services, he must fully pertorm on his part, unless released by his employer, or compelled to leave his employment for some justifiable cause.

The opinion of the Court was delivered by CATON, J. from which, as published in the Western Law Journal for June 1848, we make the following extract:

“ The verdict in this case cannot be sustained by the evidence. By the contract between the parties, Heald was to work for Badgley six months at eight dollars per month, with the right to either party to terminate it at the end of the first month. This was an entire contract--as much so as if the agreement had been to work the six months for forty-eight dollars, with the privilege to either party to put an end to the contract at the end of the first month, when Heald should receive eight dollars. As the agreement was not terminated at the end of the first month, it was then the same as if it had never contained such a provision. The evidence clearly shows, that Heald abandoned the service of Badgley before the completion of the contract, and without the consent of Badgley, or any justifiable cause. Nor can it be said that Badgley subsequently consented to the rescinding of the contract by the payment of the eight dollars, even were that admissible; for, although Badgley did pay Heald eight dollars, yet he did it under a protestation that he was not bound to pay it; for he said “he would not pay him, plaintiff, any more unless he was compelled to pay it by law.” It is manifest from tliis, that what he paid at that

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time he intended as a gratuity, or did it to buy his peace, under a protest against further liability. It clearly appeared that this work was done under an entire contract which the plaintiff below refused, without any excuse, to fulfil; and the law, as laid down by this and various other Courts, determines that he is entitled to no compensation.

The case of Lantry v. Parks, 8 Cowen 63, is precisely like this. There the plaintiff had agreed to work for the defendant one year, at ten dollars per month. He worked ten and a half months, and then left the defendant's service, saying he would work no more till he ascertained whether he could collect his wages. It was there held that the agreement was entire, and that the plaintiff could collect nothing till he had performed his part of it. The same rule is unequivocally held in the cases of McMillan v. Vanderlip, 12 Johns. 165; Jennings v. Camp, 13 do. 24; Spain v. Arnott, 2 Stark. 256; Decamp v. Stevens, 4 Blacf. 24; Ripley v. Chipman, 13 Verm. 268; Morford v. Mastin, 6 Monroe 609; Thayer v. Wadsworth, 19 Pick. 349. Numerous other cases might be cited in support of this law, but it is unnecessary. Nor is there any hardship in this rule, as it might at first appear. It is reciprocal, for if the employer turn off the servant before the expiration of the time agreed upon, without any just cause, the latter may recover the full amount agreed upon, as if he had worked out his whole time. Posey v. Grath, 7 Missuuri 64.

But this is not an open question in this Court. It was the only question involved in the case of Eldridge v. Rowe, 2 Gilm. 98, where this Court reversed the judgment of the Circuit Court for overruling a motion for a new trial, where ihe evidence showed that the party had quit the service of his cniployer before the expiration of the time which he had agreed to serve, although in that case the evidence showed that Eldridge had made to Rove three

propositions: 1, that Rowe should work out his time; or 2d, get some other man to work out his time for him; or 3d, that he (Eldridge) would pay Rowe $30 for what lie had done, and let him quit, and that Rowe should let him know on that day which he would do. Within the time allowed, Rowe sent word to Eldridge that he was not going to work for him any more; and yet this Court held that this evidence was not sufficient to authorize the jury to find that Rowe had accepted the third proposition, to quit work and accept thirty dollars for what he had done. And the jury found that the original agreement hail beer rescinded by mutual consent, and a new agreement substituted, which finding was approved by the Circuit Couri, and yet the judgment was reversed, because there was no evidence to sustain the verdict. That is certainly a much stronger case than the one before us.

The judgment is reversed with costs, and thie cause remanded.

Supreme Court of Gio.

IIAMILTON COUNTY, MAY TERM. 1348

(BEFORE JUDGES READ AND HITCHCOCK.)

EDWARD TUITE v. WILLIAM MILLER.

1. A claim of dower is embraced by the covenant of general warranty.

?. An assignment of dower by a certain share of the rents and protiis inade chargo on the land, and enforced by an order for its collection, is equivalent to an actual eviction of one-third of the land by au assignment by metes and bounds, and putting the widow in possession.

After the decision in 10 Ohio Rep. 392, Tuite brought an action of covenant, in the Superior Court of Cincinnati, which was taken by appeal to the Supreme Court.

The case was submitted to the Court, and the facts, as agreed and understood by the parties, were briefly these:

On the 28th of April, 1836, Miller conveyed to Tuite, in fee simple, a lot in the city of Cincinnati, and in the deed covenanted that he was the lawful owner of the premises, and had good right so to sell and convey the same;" and also that he would " warrant and defend the same against all persons whomsoever."

Elizabeth Satterthwaite filed her bill in the Common Pleas, setting up a right of dower on the lot, prior to the date of Miller's deed, and at November term, 1838, obtained a decree of the Court, establishing her right. And it being ascertained that the dower could not be assigned to her by metes and bounds, a valuation was returned, and the Court finally decreed that Tuite pay her $62 38 for her dower up to that time, and pay the further sum of $66 a year thereafter, during her natural life, payable half yearly, in May and November. This was made a charge upon the lot, and in default of payment of any part of it, the Sheriff was ordered to sell so much of the lot as should be necessary to raise the sum due. An order issued, and the first sum due was paid to the Sheriff, with costs, (amount $87 86,) without levy or sale. Tuite paid the other instalments as they fell due, without further order.

The case, after having been argued several times before the Supreme Court in the county, and in Bank, was again heard at this term.

GHOLSON & MINER, for Plaintiff.
A. N. RIDDLE, for Defendant.

HITCHCOCK, J., delivered the opinion of the Court.There was no doubt, he said, but that the claim of dower was covered by the covenant of general warranty contained in the deed. The doubt in the case had been whether the facts showed a sufficient eviction to enable the plaintiff to maintain the action.

There must, he said, be an eviction or something equiralent. The regular mode of assigning dower was by metes and bounds, and putting the widow into possession of the part so assigned. Had this been done, it would, without doubt, have been an actual eviction.

The statute provided that when dower could not be conveniently assigned by metes and bounds, it might be assigned in a special manner, as of a third part of the rents, issues, and profits. The manner of assignment, then, was in the discretion of the Court; and any special mode adopted by the Court should be considered as equivalent to the regular mode, and substantially an eviction.

The recovery of the plaintiff was not to be limited to the amounts he had actually paid under the order of the Court, but he was entitled in addition, to the value of the incumbrance, to be calculated according to the tables of annuities, not exceeding one-third of the consideration money and interest since the eviction. And judgment was rendered accordingly for the plaintiff.—5 West. L. J. 413.

Supreme Court Judges in Iowa.--The Governor of Iowa has appointed the Hon. S. C. llastings, of Bloomington, Chief Justice, the Hon. J. F. Kinney, of West Point, anı! formerly of Ohio, and George Green, Esq., of Dubuque, Associate Justices.- IVestern Law Journal for June.

An important opinion delivered by Hon. A. V. Parsons, reversing a summary conviction by a magistrate, for disturbing a religious meeting, was received too late for the present number.

B An able article relative to the decisions upon the statute of limitations will appear in our next.

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