11 N.Y.S. 706 | New York Court of Common Pleas | 1890
Both plaintiff and defendant appeal from a judgment of the general term of the city court, affirming a judgment on a verdict and orders denying a new trial as moved by each party. The action is for damages from breach of a contract of employment. The contract is conceded, and on this appeal the verdict of the jury in favor of plaintiff is conclusive of the breach by defendant. Arnstein v. Haulenbeek, ante 701, (decided this term.) As to defendant’s appeal, the facts essentially bearing on the question for decision are: That defendant hired plaintiff for a year, at a salary payable weekly. That she was duly paid except for the week she was discharged. That on Friday, the day before the expiration of the week, she had an altercation with defendant’s president, during which he assumed that she resigned her employment, but which assumption she then explicitly and persistently controverted. That the next day, Saturday, she went to the office of defendant, and said to the president: “I come to do my work. I am ready to do my work.” To which he replied that “he wanted nothing whatever to do with me. ” That she continued to go to the office for several mornings with offers to resume work, but he answered her as on Saturday, that "he wanted nothing to do with her. ” The contention on the trial was whether plaintiff had resigned or had been discharged; but in this court the verdict for plaintiff concludes the question in her favor. Both by plea and proof, the defendant interposed the defense of former recovery, and the question is, was the defense sustained? The plaintiff had recovered a-judgment against defendant in a district court, and the precise point in controversy is whether that judgment was for wages due by the contract of hiring, or for a quantum meruit, or damages for breach of contract. For, if the recovery in the district court is for an installment of the stipulated salary due by the terms of the contract, it is no bar to this action for general damages for breach of the contract. Perry v. Dickerson, 85 N. Y. 345. On the other hand, if the recovery in the district court were upon a quantum meruit for the value of services rendered, or for damages for breach of contract, then the judgment in that court operates as an estoppel in this action. ■ Moody v. Leverich, 4 Daly, 401, 408. Now, to ascertain what was determined in a former action, “it is proper to look beyond what appears on the face of the judgment, to every allegation which, having been made on one side and denied on the other, was at issue and determined in the course of the proceedings. ” Griffin v. Railroad Co., 102 N. Y. 449, 7 N. E. Rep. 735; Bell v. Merrifield, 109 N. Y. 202, 16 N. E. Rep. 55. Adverting to the pleadings and evidence in the district court, we see that the action was on the contract, (“contract admitted in evidence;”) that the value of the services was not litigated; that plaintiff’s claim was “for wages” eo nomine, and not for damages for the wrongful discharge; and that her recovery was of the $25 stipulated to be paid for one week’s services. That the action was tried as involving a claim for “wages” due and payable is conclusively evident by the express admission of
The verdict of the jury in the plaintiff’s favor determines that she has the right and justice of the case; and, if she is defeated of her dues by a technical defense, that defense must be clearly established. “ The burden of proof is upon the party claiming an estoppel by a former judgment to show clearly that the fact in issue was determined in the former action. ” Zoeller v. Riley, 100 N. Y. 102, 2 N. E. Rep. 388. It is not apparent that in the action in the district court plaintiff recovered anything upon a quantum meruit or on account of damages for breach of contract; and accordingly the defense of res adjudicata fails. As to plaintiff’s appeal, there must be another trial of the action because of error in the judge’s charge. It was in evidence that, after the dismissal of plaintiff, an offer was made to take her back in the service of defendant, upon the conditions of the original contract, except that the time of service was to be from the date of the offer, January 13, 1888, instead of from the time of her dismissal, the 9th or 10th of December, 1887, (upon the evidence it was questionable on which of these days her dismissal definitely took effect.) This offer the plaintiff rejected, on the sole ground that the proffered employment “from to-day on” was not in accordance with the original contract, which was an agreement on the same terms from the 27th of June, 1887, to the 27th of J une, 1888. It is unquestionable law that a servant, wrongfully discharged, must make reasonable endeavor to obtain other employment, and that, in an action for his wrongful discharge, his