Oscar B. Janin, Appellant, v. Cheney Brothers, Respondent

Oscar B. Janin, Appellant, v. Cheney Brothers, Respondent. Breach of a contract of employment—a receipt foi' “ one-half month’s salary ending June 30, ’92 ” is competent on the question as to when it began — letter of the plaintiff’s attorney to the defendant containing a statement of the plaintiff’s case — not rendered admissible by the admission of the reply—charge to the jury in regard to an interested witness. Jn an action to recover damages for the breach of a contract of employment in which the plaintiff claims that the contract, which was for a year’s service at a yearly salary, was entered into on the 11-th day of April, 1892, while the defendant claims that the employment was from July 1, 1892, and that the service rendered by the plaintiff previous to that time was under a mere preliminary • engagement, a receipt given by the .employee to his employer, in which he acknowledged the receipt of a sum of money ' ‘ in settlement of one-half month’s . salary ending June 30, ’92,” is' competent in support of the defendant’s contention. A letter written to the defendant corporation by the plaintiff's attorney containing a statement of the plaintiff’s case is not rendered admissible by .the admission of a reply written by the officers of the corporation acknowledging the receipt of the .attorney's letter and containing a statement of what they understood the contract to be and a notification that they would forward the letter to the person who conducted the negotiations resulting in the contract, nor by a" letter written by the person who conducted the negotiations acknowledging the receipt of the attorney’s letter and stating that the defendant had paid the employee the balance due to' him. On the trial of such action, in its charge to the j ury, the court said: 1 ‘ The defend - ant also requests me to charge you, ‘unless the jury find that the evidence of the contract given by the plaintiff is corroborated either by some other witness or by some circumstance or facts, the jury are at liberty to find for the defend■ant without regard to the evidence produced by the defendant.’ That is so, as he is ah interested witness,” and then added: “Although you are to regard the evidence of the defendant in coming to a conclusion, the evidence of all witnesses.” The court further charged that the jury were to consider, in arriving at a determination, all the circumstances and all the evidence in the case; Held, that the charge was proper; That all the court intended by the. expression “without regard to the evidence produced by the defendant,” as appeared from its subsequent rulings, was that . -the jury might disregard the plaintiff’s evidence without considering the evidence of the defendant so far as it contradicted the plaintiff. Appeal by the plaintiff, Oscar B. Janin, from a judgment of the Supreme Court in favor of the defendant, entered iii the office of the clerk of the county of New York on the 18th day of May, 1896, upon the verdict of a jury, also from an order entered in said clerk’s office on the 25th day of May, 1896, denying the plaintiff’s ¡motion for a new trial made upon the minutes, and also from an order granting an extra allowance. Oscar B. Janin, the original plaintiff in this action, died pending ihe appeal, and by order of the court Amelia Janin, his executrix, was substituted as plaintiff and appellant herein. The receipt referred to in the opinion is as follows: i( $166.67. Hew York, April 30, 1892. “ Received of Cheney Brothers one hundred and sixty-six 67.100 dollars in settlement of one-half months’ salary ending June 30, ’92. “ Thanks, O. B. JARIR.” James A. McCreery, for the appellant. E. H. Benn, for the respondent. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: This action was brought to recover damages for the breach of a contract of employment. The complaint alleged that on the 11th day of April, 1893, a contract was entered into for the employment by the defendant of the plaintiff’s testator as manager of its yibbon sales department for one year from that day, the due performance thereof by the deceased, and his wrongful discharge by the defendant on July 1, 1893. The answer was a general denial. The claim of the plaintiff is that on the 11th of April, 1892, the deceased entered into the employment of the defendant under a contract for a year’s service and at a yearly salary, and that having held over after the expiration of the year, the presumption arose that the parties had assented to a continuance of the services for another year at the same salary; and, therefore, that his discharge cn the 1st of July, 1893, was wrongful, and he was entitled to continue in the service for the whole of another year, commencing on the 11th of A.pril,.1893. Upon the other hand, the defendant claims that the yearly employment was from the 1st of July, 1892, to the 1st of July, 1893, and that on the latter date, at the termination of the year, the plaintiff’s testator was discharged. It is admitted that he performed services for the defendant, from the 11th of April, 1892, to the 1st tif July, 1892 ; but it is claimed that that was a mere preliminary employment, having nothing to do with the yearly contract, which was to commence on the 1st of July, 1892. Evidence upon these issues was given, both on behalf of the plaintiff and of the defendant, and the jury having found a. verdict in? favor of the defendant no reason is shown for disturbing that iindingv It is, however, alleged that during the progress of the trial tin? court made certain errors in its rulings and also in its charge. It is-also claimed that the court erred in denying the motion made at the close of the evidence to direct á verdict for thé plain tiff. We think,, however, upon an examination of the evidence, that there was a-question which was properly submitted to the jury, and that the evidence given upon the part of the defendant tended to support-the contention. It could very well be found from the evidence, as-introduced,, that it was the understanding of the defendant that the yearly employment of the. plaintiff’s testator was to commence on the 1st of July, 1892, that being the end of the season, and that Ilia coming on the 11th of April, 1892, was a mere preliminary engagement and that such services were rendered under an arrangement made subsequent to entering into the original contract. It is also claimed that the court erred in admitting a receipt given by the plaintiff’s testator to the defendant, and that this was error which was harmful to the plaintiff in that stress seems to have bee» laid upon this piece of evidence by the court in its charge to the? jury. It was undoubtedly an important fact tending to corroborate-the theory of the defendant, and it was a singular coincidence that the plaintiff’s testator in this receipt should have referred to the 30tli of June, 1892, if it was a date of no particular importancer The receipt was a receipt signed by him, and all the written parts thereof were in his handwriting. It was a declaration upon his party and if it had any probative force whatever upon the issues involved between these parties it was clearly relevant. It may very well be claimed — as it was claimed by the defendant — that the fact of the testator having inserted that date in the receipt showed that the engagement for which he was then being paid was to end on the 30th of June, 1892, and his yearly employment was to commence on the first of July. If the defendant had discharged him on the 11th of April, 1893, this receipt would have been claimed as affording conclusive evidence against the right of the defendant to make such a discharge, and that he was 'entitled to serve under his yearly employment until the 1st of July, 1893. It was also claimed that it was error to refuse to receive the letter of the plaintiff’s attorney to the defendants. This letter was a statement by the attorney of the plaintiff’s case. A mere formal answer was sent by the officers of the corporation, who knew nothing in regard to the circumstances of the contract, advising him as to what they understood to be the contract and referring him to the parties in New York who had made the contract. It is clear that the parties cannot make evidence for themselves by stating their claims in a letter to the party claimed against when such party makes no reply. The mere formal acknowledgment of the receipt of such a letter with a statement that they would forward it to the person with whom the negotiations were had in respect to employment, and a statement of what they understood the contract to be, clearly did not authorize the admission of the attorney’s letter. Neither did the subsequent letter sent to the attorney by the person who had had the negotiations personally with the plaintiff’s testator in regard to the employment, acknowledging the receipt of his letter and telling him that they had sent a •check to the plaintiff’s testator for the balance due him, and that they thought it a sufficient reply to the letter to say that he was no longer in their employment, his services having ended on the thirtieth of June. It is claimed that the instruction given to the jury by the court in respect to the evidence of the plaintiff was error. The language of the charge was: “ The .defendant also requests me'to charge you, ‘unless the jury find that the evidence of the contract given by the plaintiff is corroborated either by some other witness or-by some circumstance or facts, the jury are at liberty to find for the defendant without regard to the evidence produced by the defendant.’ That is so, as he is an interested witness.” The-court then added: “ Although you are to regard the evidence of the defendant in coming to a conclusion, the evidence of- all witnesses.” The court then further charged that the jury were to consider, in coming to a determination, as to the matter in controversy between the parties, all the circumstances and all the evidence in the case. It seems to us that this was clearly calling the attention of the jury to their right to consider all the evidence in determining the question ; and the jury must have understood that all that was intended to he charged by the court was that the plaintiff’s testator, being an interested witness, the jury had the right to disregard his evidence, although uncontradicted, if it did not appeal to their judgment, and that when it speaks of it being without regard to the evidence produced by the defendant he meant as matter of contradiction, without considering the evidence of the defendant so far as it contradicted the plaintiff. Its subsequent rulings clearly showed that that was his intention, and the jury could not have been misled. In regard to the order for extra allowance, we think the case was a- proper one for such an allowance, although the court had no authority whatever to impose the condition which it did upon granting -the motion. We'think'that the judgment and orders appealed from should be affirmed, with costs. , Barrett, Rtjhsey, Ingraham and McLaughlin, JJ., concurred. Judgment and orders affirmed, with costs.