John G. Cosgbay, Respondent, v. New England Piano Company of New York, Appellant

John G. Cosgbay, Respondent, v. New England Piano Company of New York, Appellant. Services—a promise to pay an employee a sum in excess of what he has engaged in writing to work for is without consideration to support it. The performance of an act which a party is under a legal obligation to perform does not constitute a consideration for a new contract. In an action brought to recover upon a contract of employment it appeared that, on January 3, 1893, the plaintiff, by a written instrument, agreed to render service to the defendant until January 1,1893, for §30 per week. The evidence tended to show that, on January 1, 1893, the manager of the defendant told him that he should have §1,800 for the ensuing year, but that on July 7, 1893, the parties indorsed upon the agreement which gave the plaintiff $30 per week the words: “'The above agreement is continued in force till July 7, 1894.” And that after this indorsement was made the manager promised the plaintiff that he should receive §1,800 a year. About July 7, 1894, a new manager of the defendant told the plaintiff that he might consider himself engaged for another year. On January 5, 1895, he was dismissed by the defendant. Held, that the plaintiff could recover at the rate of §1,800 per year only from January 1, 1893, the day when the first written agreement terminated, up to July 7,1893, the day when the oral agreement came to an end by the execution of the memorandum, which stated that the former agreement was continued in force till July 7, 1894; That as by the indorsement the plaintiff had bound himself to work for one year from July 7, 1893, at the rate of §30 per week, there was no consideration for the promise of the defendant that he should, notwithstanding, receive sufficient additional salary to make his compensation §1,800 per year. Appeal by the defendant, the New England Piano Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of June, 1896, upon the verdict of a jury rendered after a tidal at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 19th day of June, 1896, denying the defendant’s motion for a new -trial made upon the minutes. George A. Clement, for the appellant. William D. Tyndall and George William Hart, for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: At the beginning of the year 1892 the plaintiff, then being in the employ of the New England Piano Company, made the following contract with that corporation : “ New York, Jct/miary 2, 1892. “ New England Piano Co. of N. Y., “ 98 Fifth Avenue : “ Gentlemen — I hereby agree to devote all my time and efforts in the services of the New England Piano Co. of N. Y. from this date until Jan. 1,1893, in consideration of a weekly compensation of thirty dollars ($30), New England Piano Co. of N. Y. to pay all my legitimate expenses connected with their interests. “Accepted. “ GORDON COSGRAY. “ New England Piano Co. of N. Y. “ T. J. Quin, MgrP According to his own testimony, the plaintiff, on January 1,1893, asked Mr. Quin, the manager of the company, for a further contract, and was told by Mr. Quin that he should continue his services for another year at $1,800 a year. On July 7,1893, having received only thirty dollars a week up to that time, the plaintiff says he asked Mr. Qiiin for the back salary which had not been paid, and that he was requested to take a piano in lieu thereof. On the same day, however, the foregoing contract, dated January 2,1892, was sent for and the following memorandum was ivritten upon it and signed by the plaintiff and Mr. Quin : “ Jul/y 7, 1893. “ The above agreement is continued in force till July 7, 1894. “J. GORDON COSGRAY. “NEW ENGLAND PIANO CO. of N. Y. “T. J. Quin, MgrP Subsequently a conversation took place between Mr. Quin and the plaintiff, in which, as the plaintiff tells us, he was assured that he should receive $240 a year “ excess of salary ” over $1,560, payable in two installments, one each six months. This would make $1,800 a year. The additional $240 per annum, however, was never paid. The plaintiff further claims that shortly after July 7, 1894, he called the attention of the new manager of the company, Mr. Dygert, to the fact that his contract had expired, and Mr. Dygert told him that a written contract was unnecessary, and that he might consider himself engaged for another year. He was thereafter dismissed from the service of the defendant, on January 5, 1895, in order to lessen the expenses of the company. In the present suit he seeks to recover the difference between $1,560 a year, which he did receive, and $1,800 a year, which he claims he should have received for the period between January 1, 1893, and the date of his discharge, and also compensation at the rate of $1,800 per annum from that date to July 7,1895, when his employment would, in any event, have terminated. We think there is an insuperable obstacle to the successful prosecution of the plaintiff’s claim for compensation at the rate of $1,800 a year, except for the first six months of 1893. The written contract of January 2, 1892, terminated on January 1,1893. Assuming that an oral agreement to pay the plaintiff $1,800 a year was made by Mr. Quin, the manager of the defendant, shortly afterward, as the plaintiff says there was, that oral agreement came to an end on July 7, 1893, when the previous written contract of January 2, 1892, was, by the execution of the memorandum at the foot thereof, put into force again and continued until July 7, 1894. The fact that, after the signing of this memorandum continuing a contract which specified thirty dollars a week as the plaintiff’s compensation, Mr. Quin told him that he should, nevertheless, receive $240 a year additional, cannot avail the plaintiff. There was no consideration for this alleged oral agreement. The memorandum already executed bound the plaintiff, on the one hand, to work for thirty dollars a week, and bound the defendant, on the other hand, to employ him till July 7, 1894. As Mr. Justice Brown said in Robinson v. Jewett (116 N. Y. 40, 53), the “ performance of an act which a party is under a legal obligation to perform cannot constitute a consideration for a new contract.” The plaintiff’s obligation to serve the defendant from July 7, 1893, to July 7, 1894, was fixed already, and his discharge of the duty thereby imposed upon him could not constitute a consideration for an agreement to pay him more than the amount for which he had already promised to work. The case might be different if the parties had, by word of mouth, agreed wholly to abrogate and do away with a pre-existing written contract in regard to service and compensation, and had substituted for it another agreement. But the contention here is that the agreement expressed in the memorandum of July 7, 1893, remained good for every purpose except to fix the plaintiff’s compensation. We do not think it could thus be modified, because there was no consideration for such modification. As the verdict was based upon a contrary view the judgment will have to be reversed. It does not follow, however, that the plaintiff may not recover the balance of his salary at the rate of $1,800 a year for the period between January and July 7, 1893, and damages for the compensation which he lost, at the rate of $30 a week, by reason of being discharged without justifiable cause before the expiration of his term of employment, if, on another trial, the jury should find it to be the fact that after the new manager of the company took charge he told him he might consider himself engaged for another year. Judgment and order reversed and new trial granted, with costs to abide the event. All concurred. Judgment and order reversed and new trial granted, costs to abide the event.