Filed. June 25, 1912.
Hamer, J.,dissenting.
I am unable to agree with the majority opinion. A statement touching the facts and evidence is contained in that opinion. It appears that the plaintiff brought an action to recover an alleged unpaid balance of $200 on his salary. He sought to recover for his services for the eight months from April to November, 1906. He recovered upon a trial to a jury a judgment for $241.45. The majority opinion holds that the evidence is insufficient to sustain the verdict. It is said in that opinion that “plaintiff did not sue upon a quantum meruit, but upon a contract.” Whether he sued upon a quantum meruit or upon a contract ought not to make much difference touching his right to recover, so long as he sued for liis wages during a given period when his employment is undisputed, and the fact that he work'ed for the comjiany and that the company received the benefit of his services is not denied. It is, to the mind of the writer, a rather technical distinction which would deny a plaintiff pay for his services because his petition set up a contract at so much per month instead of alleging the reasonable value of his services for the time he was employed. The majority opinion says: “Both parties agreed that plaintiff’s salary for the months of January, February and March ivas fixed by the contract at $75 a month and paid. For the months of December and January plaintiff received $85 a 'month, and this compensation is not in dis*544pute.” The opinion says the minutes of the corporation recite that $75 a month was the salary fixed by the defendant, and its vouchers show that plaintiff received that sum each month during the eight month's in question. The plaintiff testified that he had previously been in a similar position as manager of a telephone company at Broken Bow; that he was present at a meeting of defendant’s directors at Hastings in December, 1905, and that he told the board at that meeting that he was then drawing a salary of $100 a month, but that Hastings was a larger town and there were larger opportunities for him there, and that it Avas agreed that he should work for a month or two at $75 a month until the company could try him out; but the plaintiff testified that he told the directors of the company that he Avould not consider $75 a month as a permanent salary. They told him that they would take the matter under consideration and notify him.
After the meeting of the board the manager of the defendant company wrote the plaintiff a letter, in which it was said: “Our board met this morning and decided to employ you under the conditions talked over when you were here, viz., $100 per month, if they decide to retain you.” The plaintiff went to Hastings and then went to work for the company. It seems that no particular time was fixed to begin the payment of $100 a month. He seems to have spoken to two of the five directors of the company about bringing the matter up before the board, and he testified that they said that they would bring it up. In the language of the plaintiff, he was not to receive that amount monthly until “they could dry me out,’ ” or “until they found I was the man they wanted.” It is said in the opinion that the plaintiff did not prove that the defendant’s board of directors “tried him out,” or that they found him to be satisfactory, or to be “the man they wanted.”
In answer to this contention, it appears that they kept him, and that he worked eight months in addition to the time for which he claims he was fully paid.. It is the *545belief of the writer that, if the telephone company kept him without discharging him, it should have paid him what he expected to receive — $100 a month — or, in any event, a reasonable compensation for his services. He was not discharged, and presumably he was kept because he Avas more or less “satisfactory.” In Parcell v. McComber, 11 Neb. 209, the ifiaintiff agreed to Avorlc a year for the sum of $195, and he Avorked five months, and them sued for his wages. It Avas held that he could recover the actual value of his labor not exceeding the rate agreed upon, less any damage sustained by his employer by reason of the plaintiff’s failure to work the entire year. In that case, as in this one, part of the money Avas paid as the Avork was performed. In Burkholder v. Burkholder, 25 Neb. 270, one brother agreed with another to continue in his service five years, AArlien the brother Avas, to give him a span of horses, Avagon and harness. He failed to work the entire time, and it was held that, being susceptible of computation, a reference would be ordered to determine the amount of the deduction to be made. In Harrison v. Hancock, 2 Neb. (Unof.) 522, it AAras held that the reasonable. Aralue of the plaintiff’s services should be alloAved to him, although the contract had been abandoned by him. The same principle is announced in Murphy v. Sampson, 2 Neb. (Unof.) 297; Harrison v. Hancock, 2 Neb. (Unof.) 522. In Small v. Poffenbarger, 32 Neb. 234, the petition alleged that there Avas due from the defendant to the plaintiff for laborer’s wages for Avorlc and labor done and performed by the plaintiff for the defendant at her request during the years 1886, 1887 and 1888 the sum .of $466.55, no part of which had been paid. Held to state a sufficient cause of action, although subject to a motion to make more definite and certain.
It would seem to have been the policy of our courts to alloAV the person employed reasonable compensation for his services, whatever the bargain may have been, and Avithout reference to a strict construction of the contract. It would seem that, if the telephone company permitted *546the plaintiff to remain in its employ under circumstances which justified him in believing that he was going to be paid $100 a month, then it should have paid him that sum; and, if the company kept him under circumstances inducing him to believe that he would receive a raise in his wages, then it should have paid him- a reasonable compensation for his services, without reference to the contraed, and that no technical rule of pleading should be invoked, even though severely correct.
I am of the opinion that the judgment should, be affirmed, or, if reversed, that it should be with instructions for a reference to determine the amount of a reasonable compensation and to render judgment thereon, for the plaintiff. It may be that the latter is contemplated by the majority opinion, although it is not so stated, and for this reason I make this contention so that the plaintiff may be apprised of his possible rights.