82 N.Y.S. 494 | N.Y. App. Div. | 1903
The complaint contains two causes of action. The first is to the effect that on the 4th day of May, 1898, the defendant agreed with
At the close of the evidence the first cause of action was dismissed, and the issues tendered upon the second cause of action were presented to the jury, which rendered a verdict in plaintiff’s favor in the sum of $2,125. The plaintiff appeals from so much of the judgment as dismisses his first cause of action, and from the order denying his motion to set aside the dismissal and for a new trial of the same. The defendant appeals from so much of the judgment as awards damages against him, and from the order denying his motion to set aside the verdict and for a new trial.
The plaintiff testified that, about the time defendant dissolved with a former partner, he had a conversation with the defendant about future employment. He was then asked the question: “ Tell us who was present and what was the conversation between you at that time ? ” This was objected to by the defendant on the ground that the contract was in writing and was the best evidence of the relations of the parties. The objection was, however, overruled, and the plaintiff answered: “ He told me if I would sign a contract for him that he would give me a bonus of $1,000, and he said in the event
The plaintiff’s son, who, according to his evidence, heard the conversation testified to, was called as a witness, and said that the conversation which took place between the plaintiff and defendant prior to the execution of the contract was: “ He (the defendant) said, ‘ If you sign a contract for me for employment on the terms I will make you a present of $1,000.’ My father said he thought he would accept it and Mr. McCosker went home.” The defendant moved to strike out this evidence on the same grounds as those previously stated, but his motion was denied.
The foregoing is the evidence upon which the plaintiff relies to substantiate his first cause of action. The court, in dismissing the first cause of action at the close of the evidence, did not, in terms, strike out the evidence which we have quoted, but his ruling might properly have been based upon the view that the evidence should go out. In any event, the result was proper. The plaintiff asks us to hold, as matter of law, that an agreement to enter into a contract will support a promise to pay a consideration therefor, independent of the consideration supporting the principal contract. We are not called upon to determine that question in this case, and, therefore, express no opinion in relation thereto. It is sufficient to say that the evidence introduced on behalf of the plaintiff in relation to the bonus was not so clear and unequivocal as to indicate an intention of the parties to enter into a separate and independent contract by the terms of which the defendant was to pay the plaintiff a certain sum of money in consideration of the plaintiff’s signing the contract
The plaintiff went to work for the defendant pursuant to the contract soon after its execution, and within a few weeks thereafter defendant made an assignment for the benefit of his creditors. Upon defendant’s solicitation plaintiff stayed with the assignee and rendered to him the same óharaeter of services he had contracted to give to the plaintiff, but from the assignee he received only the sum of twenty-five dollars per week. This continued from the 30th day of July, 1898, to the 30th of August, 1899, when the defendant, having paid all of his creditors in full, reassumed the management of the business, and plaintiff continued in his employ. From that time until the last of January, 1901, the full sum of fifty
The second cause of action in plaintiff’s complaint is based entirely upon the written contract of employment, and to entitle the plaintiff to recover the salary he did not receive during the administration of the assignee, or any sums of money as salary to become due after the month of February, 1901, it was incumbent upon him to show a substantial performance or a waiver of it on defendant’s part. (Wolfe v. Howes, 20 N. Y. 197; O’Leary v. Board of Education of City of N. Y., 93 id. 1; Wood Mast. & Serv. [2d ed.] § 122.) This the plaintiff has not done.
What the plaintiff’s rights might be in an action on quantum meruit for the services rendered during the period of the assignment, we are not called upon here to decide; it is apparent, however, that in the state of proof to support this cause of action based upon the contract, the defendant should have succeeded in his motion to dismiss the complaint.
These views lead to the conclusion that the judgment so far.as appealed from by the plaintiff must be affirmed, and so far as appealed from by the defendant reversed and new trial granted, costs to abide the event.
Goodrich, P. J., Bartlett, Woodward and Hirsohberg, JJ., concurred.