12 N.Y.S. 273 | New York Court of Common Pleas | 1891
On or about September 1, 1888, plaintiff, an actress, and defendants, theatrical managers, entered into an agreement, pursuant to which the plaintiff was to “render services at such theaters, opera-houses, and halls as required” by the defendants, for a period of 30 weeks, or longer, at the option of the defendants, for which services the defendants agreed to pay the plaintiff $30 per week. The agreement also provided, among other things, that either party thereto might, upon two weeks’ previous notice to the other, terminate the employment. Under this agreement plaintiff entered upon the performance of her services, and continued doing so until about the 17th day of November, 1888, (being a period of 10 weeks,) and on which last-mentioned day the defendants refused to continue the employment, upon the ground that the plaintiff had violated the contract on her part by her refusal to attend a rehearsal at which her presence had been requested. The plaintiff thereupon brought this action against the defendants to recover damages for her" alleged wrongful dismissal from their employ, the damages claimed being the salary for -the time subsequent to her dismissal, to-wit, $30 dollars-per week for 20 weeks, less the sum of $35, earned by her from other sources, and alleged in her complaint that, during the entire term of her employment, she was ready and willing to perform all the conditions of the agreement on her part. The defendants denied that the plaintiff was ready and willing so to perform, and asserted that the plaintiff refused to perform the same, and that for good and sufficient cause the plaintiff was discharged from their employ, and had been fully paid for all services performed by her up to the time of such discharge. The action was tried, and resulted in a verdict for the plaintiff for $565, and interest, judgment upon which was duly entered, from which an appeal was taken to the general term of the court below, where the verdict was sustained; and from which latter determination the defendants have now appealed to this court. Upon the trial in the court below it appeared that the term of plaintiff’s employment commenced September 3, 1888, and that such employment continued until November 17 of the same year, on which day she was discharged by the defendants, and informed that her future services would not be accepted by them, the ground for her discharge being
It has repeatedly been held that if a person, under contract to render personal services of a peculiar kind, requiring the personal skill of the person who is to render the same, is prevented by reason of sickness from the performance thereof, his failure to perform will excuse him from such performance to such an extent that he will be enabled to recover upon a quantum meruit for the services actually rendered up to the time of his failure to .continue the same by reason of such sickness. Wolfe v. Howes, 20 N. Y. 197; Spalding v. Rosa, 71 N. Y. 40; Robinson v. Davison, L. R. 6 Exch. 269, 40 Law J. Exch. 172; Fuller v. Brown, 11 Metc. (Mass.) 440. So it has been held that an employe who is prevented by sickness from fulfilling his agreement to render services cannot be held answerable in damages for such' failure to the employer. Dickey v. Linscott, 20 Me. 453. The principle underlying these cases is that the contract was entered into by the contracting parties upon the implied condition of the continued ability of the party who is to render the services to perform, and that, when unable to perform because of sickness or physieial or mental incapacity proceeding from no willful or deliberate conduct of the party, such inability is in consequence of an act of God, and excuses performance. But what is the effect of the failure of the party of whom the services are required to'perform, under the circumstances above described, upon the contract? To render the contract operative and binding upon the parties at its inception, the obligations of the contracting parties must be mutually dependent; that is to say, the obligation of the party who is to receive the services to pay is conditioned upon the obligation of the
A distinction should, however, be made between permanent and temporary disability arising from causes beyond the control of the employe. In the case of a mere temporary disability, the effect thereof would not in every case be to work a dissolution of the contract of employment. 1 Whart. Cont. § 323. In such eases I apprehend the rule to be that, if the temporary disability did not in any substantial manner prevent performance on the part of the employe, the employment must be regarded as continuing. It would therefore appear to be necessary in every such case to inquire whether or not the pres