Hyperlawhypertext legal database Messmer v. Henry W. Boettger Silk Finishing Co. 160 A.D. 519

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Messmer v. Henry W. Boettger Silk Finishing Co.

160 A.D. 519 Court First Department, Decision date 1914-01-22 English

Delivered by Scott, J.:

Contents

Majority

p. 519
William Messmer, Respondent, v. Henry W. Boettger Silk Finishing Company, Appellant.
First Department,
January 22, 1914.

Headnote

Master and servant — action for wrongful discharge — agreement that work shall be satisfactory to customers — erroneous charge — evidence — reasons for dissatisfaction of customers.
Where a written contract employing a silk finisher provided that the work done by him should be “ satisfactory to the trade and customers ” of the employer, and that if his work was not done satisfactorily to the trade and customers the employer might discharge the employee, and the latter sues for an alleged wrongful discharge, it is error for the court to instruct the jury that it was not sufficient that the defendant shows that his customers were dissatisfied, but that he must go further and show that cause for the dissatisfaction actually existed.
It was also error to exclude testimony as to statements made by the defendant’s customers as to the reasons for their dissatisfaction.
Appeal by the defendant, Henry W. Boettger Silk Finishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of July, 1913, upon the verdict of a jury for $1,350, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.
Harold A. Andrewes, for the appellant.
Louis J. Schwartz, for the respondent.

The action is for damages for an alleged wrongful discharge of an employee.

The plaintiff was employed by defendant as a silk finisher under a written contract. By this contract, in addition to a clause whereby the plaintiff agreed to serve with fidelity, there was a special clause reading as follows: IV. It is expressly understood and agreed that this agreement is made by the party of the first part solely on the condition that the work done by the party of the second part shall he done in skillful and competent manner, satisfactory to the trade and customers of the party of the first part and that if the work is not done satisfactory to the trade and customers, that in such an event the

p. 520
party of the first part shall have the right at any time during the period of this contract to discharge the party of the second part and this contract in such an event shall terminate with the party of the first part and [who] shall in such event be released from all obligations hereunder.”

Plaintiff was discharged on September 24, 1910, during the term of the contract and now sues for damages. The defense rested upon two grounds. First, that plaintiff had been insubordinate, and had without justification refused to obey directions given to him,as to the performance of his work; and, second, that his work had not been satisfactory to defendant’s customers. The first defense was amply proved, and the finding of the jury in plaintiff’s favor on this defense was clearly against the evidence.

As to the second defense the trial court held that it was not sufficient to show that defendant’s customers were dissatisfied, but that defendant must go further and. show that cause for dissatisfaction actually existed. . This was erroneous. The plaintiff had signed a contract by which the term of his employment was'expressly made dependent upon the satisfaction or dissatisfaction of defendant’s customers. If they became dissatisfied, that of itself was sufficient justification for plaintiff’s discharge. (Crawford v. Mail & Express Pub. Co., 163 N. Y. 404 .) ' It was also erroneous to exclude testimony as to statements made by customers as to the reasons for dissatisfaction. (Hine v. N. Y. El. R. R. Co., 149 N. Y. 154 ,162; Wigm. Ev. § 1770, ¶ 1.)

It is quite apparent that the jury were actuated by sympathy for plaintiff, or agreed upon a compromise verdict because plaintiff’s recovery is just half what he would have been entitled to recover if entitled to anything. It is evident that the judgment should not be allowed to stand.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the result.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant- to abide event. Order to be settled on notice.

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