82 N.J.L. 411 | N.J. | 1911
When the motion to nonsuit the plaintiff was made the testimony that had been given warranted a finding that on October 4th, 1909, the plaintiff had been for over fourteen months in the employ of the Brady Brass Company at $200 a month, subject to discharge on thirty days’ notice; that on the day in question he was called into the ■ office of Mr. Brady, the president of the company, to discuss some change in the terms of his employment; that while this subject was under discussion, Mr. Onslow, one of the directors of the company, came in, to whom Mr. Brady stated the subject under discussion and proposed that it be continued at luncheon, which was done. During this conversation Brady, in answer to Onslow’s inquiry as to what the plaintiff “was getting,” replied, “twenty-four hundred,” and, at the conclusion of the luncheon, the remarks quoted in the statement that precedes this opinion were made respecting the result of the conference.
On the evening of the same day Mr. Brady wrote to the plaintiff confirming what had happened at the luncheon as “our understanding of even date,” and saying, “our company understands that for the year beginning this month you will concentrate your best efforts,” &c.
Upon this testimony and other proofs showing that the company were not dissatisfied with the plaintiff and had no thought of discharging him, it was open to the jury to find that as some change in the terms of plaintiff’s employment was the express subject of the conference and of the discussion that preceded it, and as the nature of his work and his annual compensation remained unchanged, the only term in which any change was made was that the monthly employment, with its incident as to discharge, was changed into a straight employment for one year. If there had been previously no relations between the parties a jury could hardly avoid finding a yearly contract of this nature. Such previous relation was, however, only one of many circumstances to be considered in determining what conclusion the parties came to. If the subject under discussion was whether the plaintiff should be discharged or should be continued in the company’s employment, Mr.
For reasons sufficiently indicated, we think it was not error to deny these motions.
The eases holding that where no attempt has been made to reduce the terms of a contract to formal language the intention of the parties as gathered from what they said and did is a question of fact for the jury are very numerous. Tatterson v. Suffolk Manufacturing Co., 106 Mass. 56, may stand for the class.
In the present case, however, a preliminary question was whether or not any contract was made on October 4th, 19Q9. This under the testimony was clearly a question for the jury.
It may be that, if the making of a new contract on that date was admitted and the sole question was what were its terms as evidenced by a single unequivocal declaration, a court question was thereby presented.
We need not consider this question, however, since no such point was made at the trial. Counsel, it is true, objected to a part of the charge on the ground that there was no question for the jury, just as he rhoved for the direction of a verdict on the same ground, but he nowhere suggested as an additional ground that the testimony was such that the court should have determined the terms of the contract. Indeed, he could not consistently have laid such a ground, because his contention throughout was that there was a lack of proof as to the making of a new contract and-its terms, a contention that if true as to the jury must be equally true as to the court. The trial judge could not know and was not obliged to divine any such point
Counsel also lays hold of the expression “implied contract,” used by the court in its charge, and argues that it was not technically apt as applied to an executory contract to be gathered inferentially from the words and conduct of the parties. The judge, however, was talking to a jury, not dictating a legal thesis, and lie told the jury that by an Implied contract he meant “one to lie gathered by implication, presumption or inference from the course of dealing of the parties and from the circumstances of the case.”
This accords with one of the definitions given by Webster, and was sufficiently accurate in the context in which it was used.
Moreover, counsel did not direct the attention of the trial court to the verbal criticism that he now advances. His exception was “to what your honor said with regard to the right of the jury to find an implied contract from the language used by Mr. Brady to Mr. Onslow.” This was in effect an exception to the whole charge, all of which was concerned in one way or another with the contract so described, hut the point now made, viz., that the word “implied” was improperly employed was in no way brought to the judge’s notice.
We find no error in the charge ox in rulings upon evidence that should lead to a reversal.
The judgment of the Hudson Circuit is affirmed.
For affirmance—The Chancellor, Chief Justice, Garrison, Swayze, Trenchakd, Parker, Bergen, Kalisch, Bogert, Yredenburgii, Congdon, White, JJ. 12.
For reversal—Hone.
