The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-07-30

InPORTANT TO CONTRACTORS AND LABORBRS.
Before Hon. Judge Mccarthy.

(asGgnee) by the breach of contract of service be
tween him and the defendant. The complaints al
leges that in October, 1852, the defendant was q
contractor on the Panama Railroad and hired the
assignor to go TO the Isthmus from New York, TO
work as q carpenter for six months, at two dollars
per day, and to board and lodge nan, ana iarnsn
him passage back To this city. That BARLEY agreed
to and did 90 as above stated. and worked for de-
PENDANT on the lsthmus for about eight days,
when. without any fault on his part, ne was
discharged by defendants agent, and the con-
tract thereby broken. That BARLEY performed
the agreement ON has part and on July .,
1853 assigned to the plaintiff his claim for damages.
Issue is taken upon all the material averments OF the
complaint. The agreement Is IN writing, ana from
its peculiarties merits more than passing notce.
It, amongst other things provides that the assghor
shall work for defendant Tor six months al MS TRADE,
or at any other work that defesdants agent may re-
quest OF him to do and further that defendant could
discharge him at any moment, by expressing himself
dissatisfied with plaintiff; and II discharged all back
wages were 10 be forfeited" The assignor, being
called on the stand proves the assignment. Objection
was made to the competency OF Witness there Is no.
thing in the objection taken whatever may be said OF
the moral effect OF permitting an assignor TO be wit
ness to support the claim assigned; the law expressly
recognizes TIE to do 80. The witness further tes
tilted TO the execution OF the agreement and that pur
suant to it, he and others, by defendants direction,
went to the lsthus consigned 10 defendants agent;
that they arrived about 18th 10Th October; detcI-
dant's agent Zone HunD received them at Aspinwall
and sent them TO work at BarDicore. The objection
to witness was here renewed upon the ground that
the claim was not assgnable III its nature The
point was pressed by defendants counsel wltn great
zeal and considerable ingenuity, which, together with
the fact that fthe objection be well taken it goes TO
the whole case, induces me 70 devote more space to
1t than any intrinsic soundness in the objection
ITSELF The rule which distinguishes chooses in action
assignable and not aSslgnable Is clearly laid down to
be this, far is necessary TO state IL here such
right Of action affects the estate OF the asgnor and
would survive TO his personal representatives, are as
signable. Such as affects the person of the person
DESTROYS to assign, and would not survive to his per-
sonal representatives, are not assgnable This dis
tinction has been often laid down that it is not
open at this day for discussion, and on the trial. Ia
king the view here expressed Of the law, oyerruied
the objection and subsequent examination has salts
fed me that the ruling Was correct, and that the
arguments which Can be produced In support OF
the objection, however ingenious, are but sophls-
tical. (Hodgman agt. the Western Railroad Com
pany, Towards Reports, 492, and cases
there cited. Draught agt. Curtis and al, 8 How
ards Reports 500 The witness further testified,
that under the defendants direction, Tor those of
his agents, which / speak OF as his own0 he
worked eight days, and at the expiration OF that
time he was discharged BY one Dalton, an agent
of the defendant 1t further appeared that before
his working for the defendant ultimately ceased, q
refusal to work unless better accommodations and
food provided for them, asserted by the me-
chanics employed by the defendant and acted upon
by them in SO far tina. they knocked OFF, work for
one day, and also that the witness BARLEY was
among those who " knocked of" He denies par
ticipating in any preconcert in the revolt and says
III \,
and that he did so. He had been appointed by the
defendant as sort of foreman, and this fact
urged as rendering his fault in % knocking Off,
more grevous in this, that 1t encouraged the others
PROFESSIONALLY from his superior po-
sition. However correct this may be, at this
time we can only judge and decide between the par
ties by their actions at the time, which are the
surest crterons OF the views then taken by them OF
the matter II appears that Barley after he had
knocked off, and returned TO his work was re-
tanned in the Defendants employ. Now, although
defendant agent says he took the first opportunity
to /" send him away he does not appear to have
found it till time had elapsed after the revolt
and when he did " send him away he did not dis
charge hmm but sent him back to Hunt (because
there was no work at Barbicore,) to whom he
tenoered his services. Hunt told him he had no
work for him to do. BARLEY very properly offered
himself to other parties, who employed him up to the
time OF his falling sick, which occurred some few days
after. The counsel for the defendant urged strongly
that BARLEY had violated the contract and that the
continuing Of him in the defendants employ was not
"a conformation" 1t is very evident from the action
Of the parties that he was not at the time regarded
by either OF them having violated the contract,
and no reason appears why the Court should en-
deavor to force upon the evidence q construction
which appears not 10 have been at the time put upon
their acts by the parties Themselves; and further adj
hitting the correctness OF the defendants position
herein cases o. contracts which in themselves can
not be enforced being void by statutory provisions,
where the parties act under them the contracts are
always permitted to be used, and when used, furnish
the controlling Of damages. So, If lie violated
the contract, and that il was thereby annulled be-
tween them, and that violation was disregarded by
both parties. parity of reasoning would render 1t
lawful ard equity render just that the subsequent
services should be- considered as TO damages, Is tothe
obligations incurred by the employer to be subject to
the conditions Of the agreement. Bat it onght not
to be cortended and never can be held that
party can sleep upon his wrongs; he should have
acted at once ald at have discharged the man,
and not have continued him in his service retaining
his fault against him harboring i in his mind 10 be
avenged st his conyere nee; nor after having him.
self without just cause, broken the contract be per-
mitted by an atterthOught u bring IN the others
previous fault particularly where the others error s
not shown TO have caused any damage or even in.
convenience Upon demurrer tha. lie who has CON-
mitted the fir t error ais may he very correct
and expedent rule y pleading, but can scarce be
stretched TO apply u performance or nonpertorm-
ance, recovery - uooIecvyery, under contract
1t was urged q me Court, that BARLEY had not
procured the eoftlhc,'e u the defendants doctor