110 N.Y.S. 787 | N.Y. App. Div. | 1908
Upon the trial the learned justice presiding ruled that the words used in the contract, his entire business services,” and the omission to state or indicate the services to be performed by plaintiff made the contract ambiguous, and received parol evidence to explain their meaning and show their application. It had appeared in evidence without objection that for twenty-three years preceding the making of the contract the plaintiff had followed the business of a horse trainer and driver in races, developing trotting and pacing horses and making a specialty of driving in races, and at the time the contract was made, and for some time prior thereto, had some of the defendant’s horses in his care and had driven them in races which were attended by defendant. The plaintiff’s contention was that because of this fact, the knowledge of defendant that he was a driver and trainer of experience and his lack of knowledge and experience in other lines of business, the words in the contract were understood and intended by the parties to apply to the services with which he was familiar and in the rendition.of which he was an expert. While it was claimed by defendant that the understanding and intention of the parties was that the plaintiff should do whatever the defendant required of him in a business way, and that he had the right to direct him to devote his time to whatever he saw fit and at such places as the defendant saw fit to send him, to the exclusion of the profession to which the plaintiff had devoted his life, either of these constructions might very properly be given to the words used. A contract is ambiguous when it is open to various interpretations, has a double meaning and is, therefore, of doubtful purport. I think parol evidence as to what the understanding and intention of the parties was at the time they entered into the contract was properly received. (Petrie v. Trustees of Hamilton College, 158 N. Y. 458 ; Emmett v. Penoyer, 151 id. 564, and cited
The contract was executed on June 19, 1905, and on the first of July following the plaintiff entered upon its performance. He had the care and training of horses for the appellant and others until December of that year, when he was sent South to sell the capital stock of the L. D. Johns Company, ■ with the understanding, he testifies, that the defendant would send for him in May following, at which time a good string of horses would be purchased and placed in plaintiff’s charge. After a short time spent in trying to sell the stock, the plaintiff became dissatisfied with the work and wrote the defendant complaining of his experience, expressing his dissatisfaction. Within a month after this time he was discharged. He had been paid in full to March first. This action was commenced on the sixteenth of the following month and was tried in January, 1907, some eight months before the expiration of the time stated in the contract for its termination.
The plaintiff has recovered more than his wages would have amounted to at the time of the trial, and defendant contends that the recovery could not, in any event, exceed the amount unpaid and due at the time of the trial, less deductions for earnings subsequent to his discharge. The answer to this is that the action is not brought to recover wages, but is to recover damages for a breach of the contract of employment for which the plaintiff can maintain but one action and in which all of the damages sustained by him that are susceptible of proof may properly be recovered. In such an action the plaintiff is entitled to recover such damages as he can show he has sustained by a total breach of the contract. Where it is certain that damages have been caused by a breach of the contract and the only uncertainty is as to their amount, no good reason exists for denying a recovery to the extent of such as are reasonably certain and actually might follow such breach determinable approximately by a jury upon reasonable conjecture and probable estimates. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205.) In the case at bar the damages sustained by plaintiff were clearly
A careful examination of the record fails to disclose any substantial error, and the judgment and order must be affirmed.
1. Whether damages for breach of a contract of service for a fixed term at a fixed salary by the discharge of the employe may be estimated to the end of the contract period or only up to the day of the trial of the action, when the contract period has not yet expired, is unsettled in this state. In this case the learned trial Judge charged that they could be estimated to the end of the contract period.
The rule is settled in England and here that the employe- has an immediate right of action on the breach for his entire damage (Hochster v. De La Tour, 2 El. & Bl. 678). On what principle may he be arbitrarily restricted in his damage to the time which has elapsed before the trial ? The question does not seem to have been raised in any case in England, and its origin in this country is vague. If (for instance) I employ a man for a period of three years, and discharge him at the end of one year without cause, and he presently sue me for the breach, and is able to show on the trial (it occurring before the end of the contract period) that he has
There has been much indiscriminate citation of cases in this country on the question. Cases are cited again and again for the proposition that the damages may be estimated only during the part of the contract period which has elapsed before the trial, nearly all of which being looked at are found to be cases where the contract period had not expired when the action was begun but had expired before the. trial day, and where the question ivas whether the damages could be recovered up to the time of the trial {i. <?., speaking with precision, up to the end of the contract period), or only up to the time of the commencement of the action. These cases have to be classified by themselves, and as not bearing on the question now being considered.
Coming down by a process of elimination to the cases in point,
In the Massachusetts case of Gutter v.' Gillette (supra) the question was so carefully considered and disposed of that it may not be deemed an encumbrance of the pages of our reports to quote from the opinion there delivered instead of leaving it to be read in its original source, viz.: “For this breach he (the plaintiff) can have but one action. In estimating his damages the jury have the right to consider the wages which he would have earned under the contract, the probability whether his-life and that of the defendant would continue to the end of the contract period, whether the plaintiff’s working ability would continue, and any other uncertainties growing out of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn money in other work during the time. But it is not the law that damages which may be larger or smaller because of such uncertainties are not recoverable. The same kind of difficulty is encountered in the assessment of damages for personal injuries.” The opinion says that the defendant conceded that such is the rule in England, and this is also taken for granted in other cases (Mount Hope Cemetery Assn. v. Weidenmann, supra).
It remains to refer to the decisions in our own state. In Everson v. Pouo&rs (89 B". Y. 527) the contract period had not expired when the action was begun, but had expired before the trial, and the only question presented and decided (the court adhering strictly to it) was whether damages could be recovered for the part of the contract period which ran after the action was begun, i. e., up to the end of the contract period; and it was decided in the affirmative. In a subsequent minor decision it was held that where the contract period liad not expired at the time of the trial, damages could be estimated only on the part thereof which had run up to the day of trial, and other minor decisions followed it as a precedent (Bassett v. French, 10 Misc. Rep. 672; Ze-nder v. Seliger Toothill Go., 17 id. 126; Sommer v. Gonhaim, 25 id. 166). The point was not involved in Oostigan v. Mohawk & Hudson It. P. Go. (2 Den. 609), Colburn v. Woodworth (31 Barb.' 381), or Howard v. Daly (61 B". Y. 362); and yet these and like cases have been frequently cited as authority thereon. In Bassett v. French (supra) the learned judge who wrote finds insuperable difficulty in the fact that either
But the principle of the case of Wakeman v. Wheeler & Wilson Mfg. Co. (101 N. Y. 205) is applicable to and decisive of the present case in favor of the plaintiff. There agents sued for damages for breach of a contract of agency for the sale of merchandise, the compensation of the agents to be a commission on sales, and it was held on appeal, reversing the trial court, that damages, although problematical and uncertain in their calculation, could be estimated for the entire period of the agency, which had not expired at the time of the trial. If this be the rule in the case of compensation by commissions on sales, it is impossible to see why it should not be in the case of a fixed salary, for the former has more elements of uncertainty than the latter. It cannot be conceived that the decision would have been the other way, if the contract had been for a fixed salary.
2. The phrase in the written contract, “ His entire business services”, has reference to the plaintiff’s calling or business, and does not mean any business or work which the defendant might choose to put him to from time to time; and as the contract does not disclose the calling or business of the plaintiff, it was competent to prove what it was by evidence dehors. His business was that of trainer and handler of race horses, and he was employed by the defendant in that capacity when the contract was made. The new contract was a continuance of the employment. This was quite conclusive of what business the plaintiff was employed to do. Every one to his own business or trade.
The judgment should be affirmed.
' Present—Jenks, Hooker, Gaynoe, Bioh and Miller, JJ.
Judgment and order unanimously affirmed, with costs.