23 N.Y.S. 1016 | New York Court of Common Pleas | 1893
Defendant is a corporation organized under the laws of the state of Oregon, and engaged in the business of compounding and vending a preparation represented by it to "promote the growth of human hair. On or about September 13, 1892, it entered into a 1 contract with plaintiff by which the latter bound herself to enter defendant’s employ, for one year from the date thereof, to exhibit her hair at such times and places (Sundays excepted) as defendant should direct, at a salary of $50 per month; defendant, also, to bear all hotel and traveling expenses. Excepting only as to the dispute - hereinafter noticed, it was conceded that the terms of the contract of employment were correctly set forth in an instrument dated September 13, 1892, which was executed by.both parties; the defendant acting by its manager, W. C. Halleck, who was the author of the document, and had been in continuous possession of it. At the time of the commencement of this action there remained unpaid to plaintiff the salary for two months, during which time her services and attendance had not been required by defendant for the purposes of the exhibition of
“Said party oí the second part [plaintiff:] hereby engages herself to enter.into the employ of the party of the first part [defendant] at the monthly salary of fifty dollars, ($50,) payable as follows, to wit: The said party of the second part is to exhibit her hair for the period of one month, and the salary thereof is to be reserved for the security of the party of the first part, that the party of the second part will fully carry out the terms and conditions of this agreement. That, after the said party of the second part h(as worked and exhibited her hair for the period of one month, her salary shall commence to run at the expiration of one month, and her salary shall be paid monthly, while so exhibiting, at the rate of fifty dollars ($50.00) per month, payable at the end of each month.”
The context of the instrument was type-written, except the words “while so' exhibiting,” which were interlined in the handwriting of defendant’s manager, Halleck. Plaintiff denied that the interlineation had been made when she subscribed the instrument. Defendant maintained that it had been. Both parties supported their respective contentions by evidence, and upon the conflict thus ensuing the justice below decided in plaintiff’s favor, and adjudged her entitled to the recovery of $100.
We have scrutinized the evidence with exceeding care, and, duly considering the advantage had by the trial justice, in observing-the witnesses while under examination, we are unable to conclude that the judgment is against the weight of the evidence. Nor do we deem it at all material whether the interlineation was made before or after plaintiff executed the instrument. The sense in which an instrument is to be interpreted is its apparent sense,— that in which it will be commonly received; not the sinister, furtive sense of one of the contracting parties,—a sense forced out of the language by technical precision. That plaintiff executed the instrument with the words interlined would only prove that the fraud was successful to that extent. It is utterly unreasonable and preposterous to suppose either that plaintiff intended to enter defendant’s employ for one year at a monthly salary of $50, the payment of which should be proportionate to the actual time and attendance required of her for the literal exhibition of her hair by the exigencies of defendant’s business, or the caprice of its manager, or that defendant or its manager understood such to be plaintiff’s intention. A bare perusal of the instrument is convincing that it was intended to convey the meaning that the salary would be paid so long as plaintiff continued in defendant’s employ, and subject to its directions. “Interpretation is the art of finding out the true sense of any form of words; that is, the sense which their author intended to convey, and of enabling others to derive from them the same idea which the author intended to convey." Lieb. Herm. p. 11. “In no case of human life, in which we are called upon to act, to apply rules, or to understand what others say, can
Assuming plaintiff to have been a nonresident of this state, the court below, notwithstanding, had jurisdiction of this action. The contract was entered into in Philadelphia, Pa., and required plaintiff to exhibit her hair at such places as defendant should direct. In the absence of an agreement to the contrary, her salary was payable to her, wThen due, at the place where she was, at defendant’s direction, for the time being. That was in the city of New York. Hence the cause of action arose there. Perry v. Transfer Co., (Com. Pl. N. Y.) 19 N. Y. Supp. 239.
Section 3215 of the Code of Civil Procedure
Hone of the exceptions taken to rulings on the trial present error. Judgment affirmed, with costs. All concur.
Code Civil Proc. § 3215, gives tlie district court of New York city jurisdiction of actions against foreign corporations having an office in such city.