190 A.D. 452 | N.Y. App. Div. | 1920
This action was brought to recover the sum of $100,000 damages for breach of a written contract of employment
The contract also contained the following provision: “ Agent [plaintiff herein] shall furnish during each calendar year an amount of new insurance satisfactory to general agent [defendant herein] and company.”
The evidence shows that after said contract was delivered, plaintiff, on or about October 1, 1915, undertook the performance of his duties as agent for said company thereunder. He testifies that he performed a large amount of so-called missionary work and in organizing subagencies and in laying, the foundation for a successful career as the agent and representative of said insurance company. With the exception of a policy of $3,000 upon his own life, he actually wrote no insurance prior to his discharge, which occurred on January 12,1916, although he testifies that he had several “ prospects ” and
On January 12,1916, plaintiff was discharged by the defendant, through a written communication signed by the defendant as general agent for the Northwestern Mutual Life Insurance Company, and by him sent to and received by the plaintiff on or about said date. The written communication was as follows:
“ The Northwestern Mutual Life Insurance Company “ Jno. I. D. Bristol,
“ Manager for The New York City Agencies,
“ Metropolitan Building,
“ Madison Avenue, 23d Street and Fourth Avenue,
“ New York City.
“ January 12, 1916.
“ Mr. Morton L. Mortimer,
“ 306 West 94th Street,
“ City.
“Dear Sir.— Kindly take notice of cancellation of your agency contract with me, as General Agent, of date June 23rd, 1915. Reason: Business entirely unsatisfactory.
“ Please return your copy of contract, for cancellation of Company endorsement thereon, together with rate books and any other Company documents.
“ Very truly yours,
“ (Signed) JNO. I. D. BRISTOL,
“ General Agent."
Plaintiff’s discharge was thus effected in writing, in accordance with the terms of the contract between the parties, which provided that the contract might “ be terminated by general agent or company at any time, upon written notice to, agent, by reason of the failure of agent to keep and comply with any of its requirements or provisions.” The reason stated for such discharge was, “ Business entirely unsatisfactory.”
*457 “ Mortimer v. Bristol: What, under the circumstances, was meant by the phrase,c calendar year,’ is far from clear. Moreover, the damages are much larger than my interpretation of the evidence would warrant. However, aside from these questions, I think I was in error in excluding evidence of other grounds for plaintiff’s discharge than those assigned in defendant’s letter, terminating his employment. I do not find that when this evidence was excluded defendant’s counsel covered my ruling by an exception, but this clearly was an oversight and one will be allowed nunc pro tunc. For the reason last given the verdict will be set aside and a new trial ordered.”
A consideration of the reasons thus stated by the learned trial justice for his action shows that, while he was still in doubt as to the meaning of the phrase “ calendar year,” and while the verdict of the jury for damages was more than he thought the evidence warranted, the verdict was set aside upon the sole ground that error had been committed in excluding evidence of other grounds for plaintiff’s discharge than those assigned in the defendant’s letter terminating his employment.
The defendant offered to show upon the trial that there were other reasons for plaintiff’s discharge than that the business which he had done was unsatisfactory. The court held that, having in writing specified the grounds of discharge, the defendant could not show that there were other reasons for plaintiff’s discharge than those of which he had been notified in writing. But the court suggests that the defendant took no exception to the court’s exclusion of such proof, and suggests that such neglect to except to the court’s ruling was clearly an oversight on the part of the defendant, and announced that an exception would be allowed nunc pro tunc, and such exception was written into the record at the appropriate place. Thereupon the order appealed from was entered setting aside the verdict of the jury and granting a new trial. Plaintiff contends that in granting said order error was committed in the following particulars:
1. That the trial justice was without power to grant an exception to his ruling nunc pro tunc after the rendition of the verdict, and that there being no exception taken to the ruling of the trial justice excluding this evidence, the court was without power to order a new trial because of said ruling.
3. Even if ordinarily it could be considered admissible, said evidence could not be received without the pleadings being amended because in the pleadings plaintiff alleges that the sole reason for the discharge of plaintiff was that given in the written notice.
As to plaintiff’s first contention, it seems to me that the court was powerless to grant an exception after the rendition of the verdict. The taking of exceptions at trials to rulings made is governed by sections 994 and 995 of the Code of Civil Procedure. Section 994 relates to exceptions taken after the close of a trial before a court or referee without a jury and permits an exception to a ruling upon a question of law to be made after the case is finally submitted, by filing notice of exception. Section 995 of the Code relates to exceptions at trials before a court and jury, as was the trial now under review, and provides that in such case “ an exception must be taken, at the time when the ruling is made, unless it is taken to the charge given to the jury; in which case, it must be taken before the jury have rendered their verdict. It must, at the time when it is taken, be reduced to writing by the exceptant, or entered in the minutes.” "1
The Code provision, therefore, is mandatory, and no exception may be allowed, unless taken at the time the ruling is made; or, if to the charge, then before the jury have rendered their verdict. The reasonableness of such rule is at once apparent, as the taking of an exception by a party feeling aggrieved by the ruling directs attention to the claimed error and permits the party at whose instance the error is made to withdraw incompetent proof offered or otherwise to correct his position, and the court is afforded an opportunity of modifying or correcting an erroneous ruling. The court cannot, at a time subsequent to the trial, cure the failure of a party injured by an erroneous ruling to except thereto. (Fifth Avenue Bank v. Parker, 15 N. Y. Supp. 734; Hunt v. Bloomer, 13 N. Y. 341; Tremain v. Rider, 13 How. Pr. 148.)
But it seems to me there would have been no virtue in such
“ X. That it was provided in and by said contract that the plaintiff, as such agent, should comply with the rules and instructions of the Company then in force or issued during the continuance of said contract, and it was further provided in said contract that the plaintiff should furnish, during each calendar year, an amount of new insurance satisfactory to this defendant and the defendant The Northwestern Mutual Life Insurance Company, and it was further provided in said contract that the same might be terminated by this defendant or the defendant The Northwestern Mutual Life Insurance Company at any time, upon written notice to the plaintiff, by reason of the failure of the plaintiff to keep and comply with any of its requirements or provisions.
“ XI. That from the date of said contract and down to the date of its termination, as hereinafter set forth, plaintiff did not procure any applications of persons to be insured in said defendant Company, except one policy for $3,000 on his own life.
“ XII. That by reason of the failure of plaintiff to secure new business as set forth in the preceding paragraph of this amended answer, the defendant became, was and still is dissatisfied with plaintiff’s work and performance under said contract.
“ XIII. That the plaintiff wholly failed and neglected to comply with and carry out the terms and provisions of said contract on his part to be performed, and to perform his duties as ah agent of said defendant, as provided in said contract, in that he failed to furnish an amount of new insurance satisfactory to this defendant or to the said defendant The Northwestern Mutual Life Insurance Company, and that on the 12th day of January, 1916, by letter, a copy of which is annexed*460 hereto and marked ‘ Exhibit C,’ by reason of the failure of plaintiff as aforesaid, defendant notified plaintiff that he elected to terminate said contract and did thereupon terminate the same pursuant to the provisions thereof.”
In order to discharge the plaintiff under the terms of the contract and within the aforesaid allegations of his answer, he was restricted to such grounds as were stated in writing. Therefore, it seems to me that any extraneous reasons which may have existed for the discharge of the plaintiff were immaterial, and that no error was, in fact, committed by the court in excluding the same. In the state of the pleadings as they stood upon the trial, the evidence which the defendant sought to introduce was clearly incompetent and not in accordance with the allegations of his answer. No attempt was made to amend the pleadings, and the court properly excluded the testimony offered.
In support of the verdict rendered at the trial, it is further the contention of the plaintiff that the term “ calendar year,” as used in the contract, meant twelve calendar months and not a small part of any given year.
The interpretation of this contract as to the meaning of the term “ calendar year ” has been before this court. During the progress of the action defendant moved for judgment on the pleadings. The motion was heard at Special Term and was denied. The justice at Special Term rendered an opinion wherein, among other things, he said: “ It does not appear that the defendant agent had a right to discharge plaintiff because he was dissatisfied with plaintiff. No such right was given by the contract and as according to the plaintiff’s version the contract was in operation merely for a few months at the time of his discharge, the provision respecting the amount of new insurance to be furnished by plaintiff in each calendar year cannot be relied upon in justification of the alleged breach.”
The order of the Special Term denying defendant’s motion for judgment on the pleadings was affirmed in this court, without opinion. (Mortimer v. Bristol, 183 App. Div. 894.)
It is the contention of the respondent herein that the action of the court in setting aside the verdict and directing a new trial, even though the reasons stated upon which the order was granted were insufficient to justify the same, was proper,
In the very nature of the case, it was impossible for the plaintiff to show the precise damages which he had suffered by reason of his wrongful discharge. I think it fairly appears from the contract and the evidence in the case that defendant was not justified in discharging plaintiff, and that plaintiff, by reason of such wrongful discharge, suffered damages in some amount. While the learned justice who presided upon the trial expressed the opinion that the damages were larger than his interpretation of the evidence would warrant, nevertheless the verdict was not set aside upon that ground. The courts of this State have many times held that when it is certain that damages have been caused by a breach of contract and the only uncertainty lies in the amount of such damages, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 209; Stowell v. Greenwich Ins. Co., 20 App. Div. 188.) The courts are reluctant to interfere with verdicts for damages where the evidence as to amount is uncertain and largely in the sound discretion and judgment of the jury. (Thurston v. Martin, 5 Mason, 497; 2 Suth. Dam. [4th ed.] 1492.) No fixed salary was provided by the contract employing the plaintiff in this case. His compensation depended entirely upon the success of his efforts. He was to receive a commission on business which he obtained. Had he been employed upon a salary and then wrongfully discharged, the jury could have easily estimated the damages which he sustained by reason of such wrongful discharge. He would have been entitled to receive by way of damages the amount of salary which he would have earned during the term of his contract, less what defendant might show he had earned or should have earned during the same period of time. (Ware Brothers Co. v. Cortland Cart & Carriage Co., 192 N. Y. 439.) But in the instant case no such basis for an award of damages exists. As some evidence of the amount of loss which the plaintiff sustained by reason of .his wrongful discharge, he testified to a former employment with the Northwestern Mutual Life Insurance Company as a subagent, where in one year and
I think the order appealed from should be reversed, with costs, and that the verdict rendered by the jury should be reinstated, and that the plaintiff should have judgment thereon, together with the costs of the action.
Clarke, P. J., Laughlin, Smith and Philbin, JJ., concur.
Order reversed, with costs, and verdict reinstated and judgment ordered to be entered thereon in favor of plaintiff, with costs.
