154 N.Y.S. 542 | N.Y. App. Div. | 1915
Action to recover damages upon two alleged causes of action. For a first cause of action the complaint alleges the making of an oral contract by the terms of which the defendant was employed by the plaintiff for the term of one year from July 5, 1913, at a salary of forty-five dollars per week, and which contract it is alleged the defendant broke by leaving the plaintiff’s employ on the twenty-fifth of August following. For a second cause of action the complaint alleges the making of a written contract on the 26th of August, 1913, by the terms of which the defendant was employed for the period of one year from July 5, 1913, at a salary of one hundred dollars per week, and which contract it is alleged the defendant broke by leaving on the day after the contract was made.
The defendant denied the making of the alleged oral contract on July fifth and alleged that the written contract of August twenty-fifth was void on the ground of duress.
At the close of the testimony the court held that the defendant had failed to establish that the contract of August twenty-fifth was void for duress and the case was sent to the jury to determine the damages which plaintiff had suffered by reason of the breach of the contract of July fifth, if such contract were made, and if not made, what damages had been sustained by reason of the breach of the written contract. The jury rendered a verdict in favor of the plaintiff for $3,420, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.
A very slight consideration of the facts set out in the record will demonstrate that the judgment and order appealed from must be reversed. The defendant, a designer of shirt waists, first entered the employ of the plaintiff in August, 1912, at a salary of forty dollars per week. On the 5th of July, 1913, she threatened to terminate such employment unless her salary were raised, and, as a result of negotiations between her and her employer, her salary was raised to forty-five dollars per week — there being a dispute between the parties as to whether she were engaged only by the week or for a period of one year. The plaintiff’s witnesses, Blanck, its president, and Harris, its secretary, testified that the defendant agreed, if her salary
The trial court very properly, as it seems to me, held that the defendant had utterly failed to establish the defense that the contract was signed by reason of duress or coercion practiced upon her. It was a deliberate act upon her part and if, by her failure to perform, plaintiff suffered damage, it was entitled to a recovery against her.
Notwithstanding the fact that the execution of the written contract was conceded, its breach established, and that it was clearly intended by both parties to take effect as of July 5,
The oral contract, assuming it was for a year, was extinguished by mutual agreement when the written contract was signed. The written was clearly intended to take the place of the oral and to be a substitute for it, and the jury should have been so instructed. Parties having entered into one contract are at liberty, if they see fit, to substitute another in place of it and, if that be done, then the former contract ceases to be a binding obligation upon either of the parties. It is then as though such contract had never been made. (Hart v. Lauman, 29 Barb. 410; McCreery v. Day, 119 N. Y. 1; Stewart v. Keteltas, 36 id. 388; Rollins v. Marsh, 128 Mass. 116; Clark Cont. [3d ed.] 526; 9 Cyc. 351.)
Under the instruction given it is urged by the respondent that the jury had a right to and did find that the value of defendant’s services was $100 per week, plus the $1,000 bonus which plaintiff offered to give her provided she entered into a contract with it and performed the same; in other words, according to this contention plaintiff was deprived of defendant’s services for forty-four weeks, August 25, 1913, to July 5, 1914, at $55 per week, $2,420, plus a bonus of $1,000, making $3,420, the amount of the verdict. Assuming this to be so, it does not establish that the plaintiff had been damaged at all. It did not pay the $100 per week during the time stated, nor did it pay the $1,000 bonus. But, as already suggested, the plaintiff was not entitled to recover for a breach of the oral contract because that was extinguished when the written contract was entered into. Nor was the plaintiff entitled to recover other than nominal damages under the written contract, because there is absolutely no evidence in the record that it
The judgment and order appealed from, therefore, are reversed, with costs, and since under the proof plaintiff could only have recovered nominal damage, judgment is, therefore, directed for the plaintiff for nominal damages as if a verdict for nominal damages had been directed by the trial court.
Ingraham, P. J., Laughlin, Dowling and Hotghkiss, JJ., concurred.
Judgment reversed, with costs, and judgment directed for plaintiff for nominal damages as stated in opinion.