Opinion
October 30, 1914.
Bertram G. Eadie [ Guy O. Walser with him on the brief], for the appellant.
Clarence J. Shearn [ John T. Sturdevant with him on the brief], for the respondent.
The plaintiff was earning twenty-one dollars per week from the sale and distribution of the Evening Telegram. The defendant requested him to discontinue the distribution with an offer to pay him therefor ten dollars and fifty cents per week as long as he abstained from such sale and distribution. The plaintiff, induced thereby, relinquished the same and has not resumed it. The defendant for several months paid the sum stipulated, and then declined further payment. The contract by its terms was not within the Statute of Frauds with reference to its completion within one year. ( Kent v. Kent, 62 N.Y. 560.) It was not without consideration, as the plaintiff abandoned a valuable business. The duration of the contract was not unmeasured, as it would continue until plaintiff did an act, viz., resumed the sale of the Telegram. ( Harrington v. Kansas City Cable Ry. Co., 60 Mo. App. 223; Carter White Lead Co. v. Kinlin, 47 Neb. 409; McMullan v. Dickinson Co., 63 Minn. 405.) But it is urged that the contract failed in mutuality. There was all the mutuality that the nature of defendant's offer permitted. The plaintiff was not asked to promise but to do an act. He made renunciation of profitable employment and was continuing it. That was exact acceptance of all that was tendered. The plaintiff did not promise, but he did the required thing. Mutuality does not depend on words alone. It is unimportant that the continuance of the renunciation depends upon plaintiff's will. If a master owe, or is claimed to owe, a servant damages for personal injury, and promise him employment in consideration of a release therefor, and the release be given and the employment undertaken, there is mutuality, although the servant may at his will cease working. ( Carter White Lead Co. v. Kinlin, supra.) So, when permanent employment is promised upon similar consideration. ( Pennsylvania Co. v. Dolan, 6 Ind. App. 109.) There was similar decision in Smith v. St. Paul Duluth R. Co. ( 60 Minn. 330); East Line Red River R.R. Co. v. Scott ( 72 Tex. 70); McMullan v. Dickinson Co. ( 63 Minn. 405). If A offer to pay B $500 upon the consideration that the latter lay down a business, B accepts by laying it down. The case does not differ in respect to mutuality if the offer be that B relinquish the business in consideration of the payment of fixed installments while the relinquishment continues, and B acts upon it. In either case, the offer upon B's compliance becomes an obligatory promise, based upon good consideration. Both upon principle and authority the order should be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, with ten dollars costs.
JENKS, P.J., CARR, STAPLETON and PUTNAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for judgment granted, with ten dollars costs.