Opinion
December 5, 1940.
January 6, 1941.
Master and servant — Wages — Acceptance of lesser amount — Evidence.
In an action to recover a balance due for unpaid wages over a period of years for a term of employment at will, in which the evidence was conflicting as to whether the plaintiff accepted sums less than the weekly rate as payment on account of the total wages due him, or continued to work after a reduction in his wage scale, it was held that the question was one of fact for the jury and that the judgment on the verdict should be affirmed.
Argued December 5, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN and PATTERSON, JJ.
Appeal, No. 290, Jan. T., 1940, from judgment of C. P. Lancaster Co., Feb. T., 1940, No. 52, in case of J. H. Cristman v. The Everite Pump and Manufacturing Company, Inc. Judgment affirmed.
Assumpsit. Before SCHAEFFER, P. J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff. Defendant appealed.
Errors assigned, among others, related to refusal of motions for new trial and judgment n. o. v.
S. R. Zimmerman, of Zimmerman, Myers Kready, with him Harris C. Arnold, of Arnold Bricker, for appellant. F. Lyman Windolph, with him Paul A. Mueller, of Windolph Mueller, for appellee.
Defendant appeals from judgment on a verdict, as reduced by remittitur, in a suit by a workman to recover a balance due for wages over a period of years, first at the rate of $51.00 per week and later at the rate of $50.00, for a term at will. The defense was that plaintiff received sums less than the weekly rate, as payment in full, and that part of the claim was barred by limitation; $50.00 was admitted to be due and unpaid at the time of plaintiff's discharge in 1939. While it is true that employment at will may be modified by reduction in wages, the question may be, as it was in this case, whether the wage rate was reduced or whether the payment made was intended, not as a reduction, but on account of the rate that had been agreed to. Liability depended on facts to be found by the jury from the contradictory testimony. There was evidence to support the finding, implied in the verdict, that plaintiff's account of the transaction was the true one; that he protested against receiving, in full of account, the amounts paid and that the payments were not intended to be in full. The evidence was submitted in a charge to which no reversible error has been assigned. The opinion filed by the learned trial judge in refusing defendant's motions for judgment n. o. v. and for a new trial show a careful review of defendant's contentions. We have reviewed the record in the light of the arguments presented.
Judgment affirmed.