The opinion of the court was delivered by: KALODNER
This is a libel brought in admiralty to recover wages.
Respondent, through its president, employed the libellant (a chief engineer) as engineer on two steamships owned by the respondent, which vessels were then not in operation.
Libellant contends that the compensation agreed upon was $250 per month, of which amount the sum of $100 was to be paid monthly, and the balance upon the happening of one or the other of certain events, to wit: (a) The sale of either or both vessels; (b) refinancing of either or both vessels; (c) placing of the vessels in operation; or (d) some other disposition of the vessels whereby funds would come into the hands of the respondent-owner.
The libellant worked for respondent for a period of five months and received $500 in wages, and then severed his employment.
Subsequently, one of the vessels was sold under a recapture clause for $20,000; the right of recapture was never exercised. Later, the other vessel was requisitioned by the government, and presumably the respondent will receive fair compensation for its use.
The libellant's legal position is that the happening of any of the contingencies expressly recited was not a condition precedent to the payment of the balance of the compensation, but only fixed the time for payment thereof. Moreover, the libellant contends that even if the events were conditions precedent, the contingencies did happen, as evidenced by the fact that one of the vessels was sold (resulting in the receipt of funds by the respondent), and later the other vessel was requisitioned, which fact will also result in bringing funds into the hands of the respondent.
The respondent's contention is that the payment of the additional $150 per month was absolutely conditioned upon the happening of only one of two contingencies: (a) That the vessels would be put in commission; or (b) that the vessels would be financed for operation; and that neither condition has been fulfilled. The respondent admitted that continued employment of the libellant, until commissioning or refinancing of the vessels took place, was not one of the considerations involved in the payment of the additional $150 per month compensation.
There is no need to analyze the testimony in detail. The issue narrows down to one of fact, i.e., whether the libellant's or the respondent's version of the terms of the contract is to be adopted.
I accept the libellant's version.
"We anticipate getting started on the work in Philadelphia within a very short time and pursuant to our conversation when you were here, if it is agreeable with you go to Philadelphia and start getting things in shape the first of next week at the rate of $250.00 per month, you furnishing your own subsistence, it being understood that you will not receive your salary until our financing is completed. I think you understand the circumstances and, of course, also understand that in the final analysis the ship will be responsible for the eventual payment of your salary."
It is to be noted that the compensation mentioned in the letter is $250 per month, and that the salary would not be received by the libellant "until * * * financing is completed". Since it is hardly to be assumed that either party contemplated that the libellant would work without pay even if the financing were not completed, the letter leads to the conclusion that the provision for payment is merely temporal in character, and not conditional. In other words, the time for refinancing merely fixed the time of payment. Under familiar rules, therefore, the wages of $250 per month would have to be paid (at least so far as the letter is concerned) within a reasonable time, whether the vessels were refinanced or not.
The other factor which impels me to accept the libellant's version of the terms of the contract is that of the libellant's position (i.e., occupation) and ability. He was a chief engineer, and it is hardly probable that he would consent to work for $100 a month, even though the vessels were not in operation. He testified that the work he did (draining and oiling the engines, inter alia) kept him busy practically ...