Stanton v. Erie Railroad

on the payment to you of the sum of $5,000 cash, the Brie Railroad will give you employment as engineer when you become physically able and are otherwise competent and qualified to discharge the duties of that position as required, and as soon thereafter as there is a vacancy, and such employment shall continue while the company has work of that character to perform and so long as you remain physically able, competent, and otherwise qualified to perform such duties, subject to the right of the company to discharge you for failure to faithfully perform such duties, to comply with its rules and regulations, or for other misconduct. Yours truly, J. O. Stuart, General Blanager.”

A general release was executed by the plaintiff, and the $5,000 was paid to him. The plaintiff now complains that on June 29, 1904, when he was qualified as a locomotive engineer, there was a vacancy, but that the defendant, although requested, neglected and refused to provide him with such employment, and continued in such refusal thereafter, although there were numerous vacancies. The defense was a general denial. The plaintiff gained a verdict of $4,500, which was at the rate of $4 a day for 1,125 days.

The defendant appellant raises several points. The question whether the contract was ultra vires was not raised by the pleadings, and therefore is not available. Keating v. American Brewing Co., 62 App. Div. 501 , 71 N. Y. Supp. 95 ; Richmond Co. Soc. P. C. C. v. City of New York, 73 App. Div. 607 , 77 N. Y. Supp. 41 . I think, however, -that the contract may be sustained under our judgment in Usher v. N. Y. Central & Hudson River Railroad Co., 76 App. Div. 422 , 78 N. Y. Supp. 508 ; affirmed 179 N. Y. 544 , 71 N. E. 1141 .

The defendant contends that it has fulfilled its contract. It had a system of employment for firemen and engineers, formulated in certain rules and regulations of agreement with the Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive Eiremen. This system contemplated promotion of firemen to engineers in regular order from a list made up upon the basis of fitness, record, and long service. Under it, firemen were advanced to engineers, engineers were assigned to duty according to seniority, and from time to time advancements of firemen were made temporarily and reductions of some engineers were made temporarily, according to the volume of' the defendant’s business. The plaintiff was a member of the Brotherhood of Locomotive Firemen, and knew of this system and of the agreements. The defendant shows that plaintiff was put upon the roll of engineers, but under its system there had not been during the period in question a vacancy in which he could be employed. This contention is necessarily based upon the proposition that the defendant only undertook to place the plaintiff on its roll as an engineer, but that his employment as an engineer, whereby he gained his pay, was subject to the same rules, regulations, and conditions as regulated that of other engineers. In fine, only the status of engineer on the defendant’s roster was assured by this contract. But the obligation of the contract is absolute, save with the expressed conditions that the plaintiff shall become physically able and otherwise competent and qualified. These conditions accentuate the absolute undertaking, in that exceptions prove the rule.

If the defendant intended by this agreement that the plaintiff should simply have a rating as an engineer, with employment as such afforded

“It may also be said .that it is reasonable and just to conclude that where ■ one of the parties to a contract, in describing his own obligations, úses language susceptible of more than one interpretation, the person with whom he is contracting will undertsand this language in the sense which is most favorable to his own interests. And it is proper that the one who occasions such misunderstanding should bear the consequences which flow from it.”

And also quotes from 2 Kent’s Commentaries, p. 557, as follows:

“The true principle of sound ethics is to give the contract the sense in which the person making the promise believed the other party to have accepted it. * * * The modern and more reasonable practice is to give the language its just sense, and to search for the precise meaning, and one requisite to give fair effect to the contract, without adopting either the rule of a rigid or of an indulgent construction.”

While the rule of contra proferentem is often said to be one of last resort, yet it is well settled:

“If the language of a promise may be understood in more senses than one, it is to be interpreted in the sense in which the promisor had reason to believe it was understood.”

See Gillet v. Bank of America, 160 N. Y. 549 , 55 N. E. 292 .

This rule is taken from White v. Hoyt, 73 N. Y. 505 , 511, which in turn rests upon Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405 , 88 Am. Dec. 337 , citing, among other cases, Potter v. Ontario & L. M. Ins. Co., 5 Hill, 149 , when the court, per Bronson, J., applied Dr. Paley’s rule in relation to the performance of contracts:

“Where the terms of a promise admit of more senses than one, the promise is to be performed in that sense in which the promisor apprehended at the time the promisee received it.”

Of course, the question is, not what the promissor had in mind at the time, but what he had reason to believe that the promisee would gather from his expression. •

“The mere impression or understanding of one of the parties, not communicated to the other, can never justify the inference that the understanding of the other party was the same; and in order to constitute a contract or agreement the assent of both parties is requisite.” Murray v. Bethune, 1 Wend. 196 .

Jones, supra, also writes:

“And the ‘obligee should have the right to require of the obligor all that a right and natural interpretation of the signs made use of would give him.’ ”

Citing from Lieber’s Hermeneutics, p. 85, note 5:

“It is the intention of the party that binds him; but what that intention was is to be learned, not from his own assertion or understanding of it, but from words or signs in which it has been clothed.”

But it is contended that the court erred in submission of the contract to the jury for its interpretation. Even if this were error, it would not call for reversal, unless the jury erred. Jones v. DeCoursey, 12 App. Div. 172 , 42 N. Y. Supp. 578 , and cases cited, affirmed 161 N. Y. 627 , 55 N. E. 1096 . But I am inclined to think this case is of the class described by Allen, J., writing for the court in White v. Hoyt, supra, where he said that, while it is true that the construction of contracts is usually the function of the court, and not the jury, yet this is not the invariable rule, and then said:

“When the interpretation depends upon the sense in which words are used, or the sense in which the promisor had reason to believe the promisee understood them, a fact to be determined from the relation of the parties and the surrounding circumstances, it would seem that it becomes a mixed question of law and fact. It is not, then, a matter of interpretation merely, but the ascertainment of the minds and intents of the parties.”

It is further contended that there was not proof of any vacancy which the plaintiff could have filled during the period covered by the complaint. The defendant’s road foreman, Salley, did testify that prior to November 13, 1905, and after the plaintiff had passed the examination, there had been no appointments made to the engineers from the firemen sufficient to reach the plaintiff’s name—no men moved up.

“Between these dates there had been no vacancy in the engineers that he could get, no vacancy to which these firemen could be moved up.”

And he further testifies:

“The paper which you hand me, which I gave you this morning, shows, as per your request, the engineers that left the service of the Erie Railroad Company from any cause from June 1, 1904, to January 1, 1905, on the New York division. Their going did not exactly leave a vacancy in their positions. It did not make a vacancy, as there was still enough men on the list to take care of the business. I did not necessarily have to take some other men to put in their place. There were men enough on the engineers’ list to take care of the business. Col. Quick, when he left his position, was known as an extra engineer. I consider there was no vacancy. When Col. Quick left the employment of our company on December 20, 1904, I do not consider that position that he left was vacant and we put some other man in.

“By the Court: Q. When he went away there was a place vacant? A. Well, of course, there was' a vacancy; one man less. Q. There was a vacancy open for somebody to fill? A. Yes.

“I have seen the word ‘vacancy’ in this contract. I answered the questions just as directly as I can. if. S. Reeder left the employ of our company on September 6, 1904. There was a vacancy in his position when he left. These

several men on this list, when they left, that created a vacancy in their position.”

On the other hand, the plaintiff testifies:

“There were engineers, after I made this contract, discharged, and other engineers employed, or firemen promoted. The wages of engineers was $4 on a freight engine.”

It is also urged that the plaintiff did not furnish any report of his physical examination as instructed. But the plaintiff testifies that he never received any such letter of instruction from the company, and, on the other hand, it appears that the defendant did not urge this omission upon him, or call his attention to it, but, on the contrary, put him upon its roster as an engineer.

I advise affirmance of the judgment and order, with costs. All concur.