56 N.Y.S. 624 | 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 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 presswork is artistically and financially satisfactory, your salary will*625 tie $50 per week thereafter. This arrangement to tie 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.
“Yours, 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 noAv 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 jury.” It was the denial of this motion by the court to which defendant’s counsel excepted; and, as it practically admits that the defendant was the employer, he is now estopped from asserting a different attitude to the plaintiff. Where counsel specially calls attention to the point to be passed upon, he cannot upon appeal urge a different point under cover of the exception to the denial of the motion made. We are not called upon to decide whether a mere defect of parties, which might be raised by demurrer, would be sufficient to give the defendant any rights on appeal on a motion to dismiss the complaint upon the ground that it does not contain facts sufficient to constitute a cause of action, and we go no further than to decide that in the case at bar the defendant is estopped from asserting that he is not the proper party to be charged with damages in this action. It may be conceded that the employer was the sole judge as to whether the management of the presswork 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
This cause may be distinguished from that class of cases referred to by Judge Danforth in Boiler Co. v. Garden, 101 N. Y. 387, 4 N. E. 749, 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 have 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 piece of work was the cause of dismissal. The fair construction of the ©ontract 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
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. All concur.