38 A.D. 553 | N.Y. App. Div. | 1899
The plaintiff brings this action to recover damages for a breach of contract, the terms of which are set forth in a letter, of which the following is a copy of the material portions:
“ Mr., James P. Summers :
“Dear Sir.—In accordance with our verbal understanding we take pleasure in engaging your services as foreman of our press*555 rooms from Monday, Sept. 30th. The salary to be paid you is $40.00 per week for the first four weeks. At the end of that time if your management of our press work is artistically and financially satisfactory, your salary will be $50 per week thereafter. This arrangement to be for one year under same conditions and to continue after first year at same salary; each party, reserving the right to cancel this agreement-at two weeks’ notice after first year. Trusting that this will prove mutually satisfactory.
“ Tours very truly,
“ FRANK LESLIE’S PUBLISHING HOUSE,
“ F. L. Colver, Manager.”
On the trial before a jury the case was submitted upon the question of whether the employer, in discharging the plaintiff at the end of four months, was acting in good faith. There was a conflict of evidence, and the jury found in favor of the plaintiff, bringing in a verdict for the difference between what the plaintiff would have received had he been employed under the contract and what he actually received in other employment during the year. From the judgment, and an order denying a motion for a new trial, appeal comes to this court; and the defendant now urges that the complaint should have been dismissed upon the motion of counsel, upon the pleadings, for the reason that it does not state facts sufficient to constitute a cause of action. The attention of the court is called to the fact that the contract was made with “ Frank Leslie’s Publishing House, Frederick L. Colver, Manager,” while Frederick L. Colver personally is made defendant in this action. But we are of opinion that this question was not raised by the motion of defendant’s counsel, and that the case having been tried upon another theory the defendant cannot be heard to urge this objection at this time. If the defendant’s counsel had moved to dismiss the complaint on the ground that “ it does not state facts sufficient to constitute a cause of action,” as he did, and had rested upon that proposition, he might be heard on this appeal upon the point which he suggests, but he did not do this. On the contrary, he urged upon the court, not the point which he now brings forward, but that “ the question as to the services under the contract mentioned in the complaint being satisfactory or unsatisfactory, was one exclusively for defendant, the employer, and not to be passed upon by court or
It may be conceded that the employer was the sole judge as to whether the management of the press work by the plaintiff was “ artistically and financially satisfactory,” but this power, vested in the employer by the contract, must be exercised in good faith. He cannot discharge the plaintiff for the purpose of reducing expenses, and arbitrarily say that he was not satisfied with the artistic and financial management of defendant’s press room by the plaintiff. The dissatisfaction must be real, and it must be sufficient to justify the dismissal of the plaintiff. Mere fault-finding by hired critics, .coupled with suggestions from the employer, are not sufficient, unless the employer is so far displeased with the general character of the work performed that he would be, in good conscience, justified in dismissing him. There was a conflict of evidence upon this point. The defendant alleges that he had some conversation with the plaintiff in which he called attention to the unsatisfactory character of the work, and that the plaintiff asked the privilege of resigning. The trial court charged that if the jury accepted this version of- the matter the verdict must be for the defendant. On the other hand, the plaintiff testified that the defendant, in dismiss-' ing him, stated that the reason for the dismissal was -the necessity of reducing expenses; arid there was evidence to show that, after the dismissal of the plaintiff, the work of the press room was carried on by one of defendant’s witnesses, who performed plaintiff’s services without any additional compensation, thus reducing the cost of
This cause may be distinguished from that class of cases referred -to by Judge Danforth in Duplex Safety Boiler Co. v. Garden (101 N. Y. 387), where the contract is “ to gratify taste, serve personal convenience, or satisfy individual preference,” by the fact, as •determined' by the jury, that the defendant did not rely upon his ■dissatisfaction with the plaintiff’s work in dismissing him, but predicated his action upon a desire to reduce the cost of operating the printing establishment. Moreover, the fact that the defendant may lave found fault or been dissatisfied with a particular piece of work •cannot be relied upon to show such a degree of dissatisfaction as to justify the dismissal of an otherwise competent man, unless the fact •of such unsatisfactory piecé of work was the cause of dismissal. The fair construction of the contract between the parties is that if the plaintiff on a four weeks’ trial is “ artistically and financially .satisfactory,” he is to have employment for one year at an advanced .salary. The fact that he served the defendant for a period of four . months, that he was given an increase of wages, either in pursuance ■of the contract or for extra labor, is some evidence that he -was ■“ artistically and financially satisfactory,” and the dismissal of the plaintiff at the end of four months, for the purpose of reducing •expenses, is not fulfilling the contract in good faith, and good faith is essential in all contracts.
As was said in the case of Smith v. Robson (148 N. Y. 252, 255): ■“ It was reasonable that the defendant should be in a position, if in
We find no error in the admission of evidence, nor in the charge of the court to the jury, and we have reached the Conclusion that the judgment should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs. ■