Markham v. Krumbholz — 139 A.D. 417

Majority

p. 417

Adel Markham, Respondent, v. T. Edmund Krumbholz, Appellant.

Third Department,

June 29, 1910.

Headnote

Contract — employment — liquidated damages — intention.

Where by a contract of .employment a servant agreed that “in the event of my not giving satisfaction in every particular * * * and for any disregard-on my part of any of the stipulations of this contract, I may be discharged, or [if] I leave while my services are required, I agree to forfeit the amount of seven dollars, as liquidated damages,” there is no intention that the servant shall forfeit the amount mentioned if she is discharged by the employer for refusing to work on-Sunday.

Appeal by the defendant, T. Edmund Krumbholz, from a judgment of the County Court of Warren county in favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of February, 1910, affirming a judgment of a Justice’s Court.

This action was commenced in a Justice’s Court. The complaint was oral and was for services rendered by the plaintiff in the laundry of Hotel Sagamore, at Bolton Landing, H. T. The answer was a general denial. The plaintiff recovered before the justice and the defendant appealed to the County Court which affirmed the judgment of the justice.

It appeared upon the trial that there was a written agreement between the parties dated June 19,1909, by which the plaintiff agreed to work for the defendant as mangle-girl and to perform the duties attendant upon such- a situation for “the sum of 14 dollars per month for each and every month that. I work for the interest of my employers, to be paid at the end of my service. 'The time of service to be computed from the commencement of actual service after

p. 418

arrival at the said hotel, and continuing until such time as my services may no longer he required, or until the close of season.” The agreement also contained the following clause: “ It is agreed that this is an entire contract, and in the event of my not giving ' satisfaction in every particular * * * and for any ‘disregard on my part of any of the stipulations qf this contract,-1 .may be discharged, or [if] I leave while my services are required, I agree to forfeit the amount of seven dollars, as liquidated damages hereby agreed upon.” The plaintiff commenced work on the nineteenth day of June and continued to -the 8th of August, 1909. She was discharged by the defendant for refusing to work in the laundry the afternoon of Sunday, August eighth. The plaintiff recovered the balance unpaid for services up to the time she was discharged. The defendant claims that the court erred in not allowing him the seven dollars which the plaintiff agreed to forfeit in the provision of the agreement already quoted.

Robert Imrie, for the appellant.

Walter H. Dodd, for the respondent.

If it be assumed that the nature of the plaintiff’s employment was such as necessarily required her to work on Sunday and that the refusal to work was a sufficient ground for discharging the plaintiff from her employment, there is complete answer to the defendant’s claim and that is that it could not have been intended by the parties that the plaintiff should forfeit the amount mentioned in the agreement, as liquidated damages, if she was discharged by the defendant. A construction which would compel the plaintiff to pay or allow the defendant, seven dollars for discharging her would cause, this provision of the contract to operate contrary to the intention of the parties, and should not be resorted to unless the language used demands it. I cannot discover any sufficient or satisfactory reason for such a conclusion.

The language of the contract is: “ In the event of my not giving satisfaction * * * and for any disregard on my part, of any of the stipulations of this contract I may be discharged.” That is the punishment provided for that breach. It also provides that if “ I

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leave while my services are required, I agree to forfeit the amount of seven dollars as liquidated damages hereby agreed upon.” The forfeiture is the specific provision made by the contract for this breach, and the rule of expressio unius est exolusio dlterius would prevent a forfeiture for any other default. I think it is clear that the appellant’s contention cannot be sustained, and that the judgment should be affirmed, with costs.

All concurred; Smith, P. J., and Cochrane, J., in result.

Judgment affirmed, with costs.