I would have little if any difficulty in agreeing with the majority of the court as to the proper disposition of this appeal were the question of res adjudicada the only serious one presented. But there is another question on the merits to be considered not touched Upon in the prevailing opinion, the facts in relation to which are undisputed, and which has the effect not only of rendering the plaintiff’s judgment unfounded and unjust, but of multiplying similarly unfounded and unjust judgments in his behalf indefinitely in the future.
The written contract between the parties was executed on or about February 1, 1900. Under it the plaintiff went to work for the defendants devoting himself chiefly to the task of filling the filters. On the nineteenth of May he refused to work any longer and was discharged. ' Since then he has not worked at all for the defendants nor sought work elsewhere. He brought suit and recovered and received the wages due him at the time of his discharge. He then sued again, and again recovered, and that judgment has also been paid. The record does not disclose the pleadings in the second suit, but at the commencement of that trial the defendant’s attorney said, “ I would like to have my friend define the nature of the action brought by him, whether it is for wages due or whether it is *350for breach of contract,” to which the plaintiff’s attorney replied, “ the action is for breach of contract.” On this, the third trial, the complaint is also for breach of contract in express terms, but for the reasons set forth in the opinion of Mr. Justice Woodwaed it is' easy and perhaps just to assume that the parties did not attach to the expression the precise and technical' significance which would prevail in a court, of record, but referred only to a claim for the recovery of a monthly installment under the terms of the contract. To adopt that view is especially easy for those of the court who took no part in deciding Waldron v. Hendrickson (40 App. Div. 7) or Wieland v. Willcox (Id. 213).
■ The contract, however, is entire, and the plaintiff cannot lawfully recover, except upon proof of full and complete performance. The executory portion of the agreement is as follows : “ That for and in consideration of the payment to the said party of the second part for the rest of his natural life, of the sum of six hundred dollars per annum, payable in equal monthly installments of fifty dollars, payable on the day of each and every month, the said party of the second part agrees. to and with the said parties of the- first part to give his advice and to lend his skill and knowledge to the said business so purchased by the parties of the first part so far as the same may be necessary or required to the benefit and advantage thereof.” The defendants did not purchase the business from the plaintiff, but purchased it from his grantee, the Hero Fruit Jar Company; and while it is true that the plaintiff’s name is used in the business, and the contract, among its recitals, mentions the defendants’ desire to use the name, that right is not conferred by the agreement. All, therefore, which the plaintiff expressly agrees to do for $600 a year is “ to give his advice and lend his skill and knowledge ” to the business. That both parties contemplated that the plaintiff would work, as he actually did work, from the time the agreement was executed until he ceased and refused to work, viz., at filling the filters, is beyond doubt or question. The defendant Johnson testified as follows: “ Q. What was this plaintiff expected to do in your business in regard to skill, knowledge and advice? A. Skill, as I understood, and as I believe that Seed understood it, whát we both understood, that it required ■skill to fill these filters, and he claimed, that he was the most skilled *351man in America, and he boasted that he was, and in fact he was skilled, and so that was one thing that Seed was to handle, was to • fill these filters.” The plaintiff himself testified as follows: “ Q. What did you make the contract for ? A. There was experience required. Q. Your experience? A. Yes, sir. Q. What is the experience ? A. Quickness. Q. Quickness in doing what ?. A. In filling the filters. Q. Then it requires some experience or skill in the filling of the filters? A. Yes, sir. * * * Q. What did you mean by the word skill when you signed that contract; what did you understand that word to mean ? A. Experience. Q. What experience is required in that particular business? A. Skill. Q. In what particular ? A. Filling them quickly. Q. Have you ' ever ref used to fill the filters? A. Never only on one occasion; that was.the last day I was with them ; I couldn’t stay any longer; I was doing more than I had any occasion to do ; I was sick and. ill and left at three o’clock in the afternoon.”
The parties differ as to whether or not the plaintiff was discharged . when he refused any longer to fill the filters on the day in question. The defendants say he was discharged but he denies it. But he never went back again, never filled a filter after May 19,1900, and. the judgment which he has recovered is based on the theory that he is under no obligation to work for the defendants or to do or offer to do anything in or about their business, but is entitled with-' out such work or offer to receive from them an annuity of $600 a year for the rest of his natural life. Manifestly the matter of “ advice ” between parties who are at law with each other monthly is intangible and valueless as a business asset. But the practical physical aid which the plaintiff contracted to render to the defendants’ business as a result of his skill and experience appeal’s to have been regarded by both parties as the chief consideration for the defendants’ promise to pay; but even were it a minor consideration, so long as it was substantial and fairly did enter into the reasons which prompted the promise of a large life annuity, when the plaintiff refused to furnish this aid the contract was broken and the defendants’ obligation to pay ceased. If the discharge was without just cause the plaintiff would be entitled to damages to be recovered in a single action. But I know of no principle of law which permits him to recover the monthly stipend for services *352which he refuses to render. He apparently realizes the weakness of his position inasmuch as he offers feeble excuses for his failure to carry out the contract. In one breath he says he did what he did in tilling the filters not under the obligations of the contract but “out of love for them ” — the defendants. In the next breath he says the reason why he no. longer does this work for the defendants is because they do not ask him to do it every day. He testified (referring to the date of the alleged discharge): “ Q. Why didn’t you go after that time ? A. They declined paying me for what I had done.' Q. And told you they didn’t want you ? A. No, sir. Q. Tet you say you were ready and willing to perform your contract? A. Tes, sir. Q. Why didn’t you go there the following Monday ? A. Because they didn’t ask me. Q. Did they ask .you every day to go there ? A. No, sir. Q. And from that time you have not been there except to make a demand for your money % A. No, sir ; I would have gone every day if they asked me, but I have no occasion to go at all.”
The conclusion that the work which the plaintiff actually did until May 19, 1900, was purely voluntary is wholly inconsistent with his testimony that he made the contract because his skill and experience in filling the filters quickly was required in the business, and that by the word “ skill ” in the contract he meant to confer the promise of that facility. If it be true that he was “ sick and ill ” on the nineteenth of May, as he says, and, therefore, quit work at three o’clock in the' afternoon, he should have gone back or at least offered to go back when he felt better. The defendants’ promise to pay this large annual sum to the plaintiff for life should not he treated as a gratuity, for which the plaintiff should be required to do nothing except to bring a monthly law suit. The practical construction which the plaintiff’s conduct placed upon the contract should be given due weight, especially in view of the testimony on both sides that it was in accord with the understanding of both; and the judgment should be reversed in the interest of justice and fair dealing.
Judgment of the Municipal Court affirmed, with costs.