Mason v. Secor — 27 N.Y.S. 570

Majority

p. 570

MASON v. SECOR et al.

(Supreme Court, General Term, Third Department.

February 13, 1894.)

Headnote

1. Master and Servant—Renewal op Employment.

After plaintiff had been in the employ of one C. for several years at an annual salary, C. formed a copartnership with defendants to prosecute the same business. Plaintiff remained with the firm, performing the same services as before. Held, that there was not an implied agreement by the firm to employ plaintiff for a year.

2. Same—Employment by Firm—Death op Partner.

A contract of employment by a firm terminates on the dissolution of the firm by the death of a partner.

Appeal from circuit court, Albany county.

Action by Daniel E. Mason against Benjamin M. Secor and Josiah D. Chapin, as survivors of the firm of Charles C. Craft & Co., to recover damages for the alleged wrongful discharge of plaintiff from the employ of defendants’ firm. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Andrew Vanderzee, for appellant.

I. & J. M. Lawson, (Isaac Lawson, of counsel,) for respondents.

Plaintiff was employed as a salesman by one Charles C. Craft for several years prior and up to January 1, 1890, at a yearly salary of $1,000. At that time Craft formed a partnership with defendants for two years to carry on the same business previously carried on by him. Plaintiff continued to work for the firm as he had before worked for Craft, until discharged, as below mentioned. Said Craft died on March 13th, and defendants discharged plaintiff on March 17, 1890, he claiming an employment for a year commencing January 1, 1890, at a salary of $1,000. Plaintiff brought this action to recover damages on account of his discharge. At the close of the evidence the defendants moved for a nonsuit, which was granted, and plaintiff excepted. There was no evidence produced showing that the firm of Charles C. Craft & Co., formed on January 1, 1890, ever made any express contract with plaintiff to employ him for any length of time,- or at any agreed salary, or otherwise. It seems that, having been at work for Craft prior and up to January 1, 1890, as a salesman, he continued in the same employment with the new firm without entering into any express contract with it. Under such circumstances, ordinarily an employer can discharge the servant when he elects, and is only liable to pay him the value of his services for the period of his employment. But tíre plaintiff contends that, having been employed by Charles C. Craft for several years at an annual salary of $1,000, and defendants having, on January 1, 1890, formed a copartnership with Craft, and continued the same business, and he (plaintiff) having continued after the formation of the partnership in their employ, the presumption is that he continued in the service of defendants on the same terms as when in the employment

p. 571

of Craft alone. Douglass v. Insurance Co., 118 N. Y. 486 , 23 N. E. 806 ; Vail v. Manufacturing Co., 32 Barb. 564 . The learned counsel for the appellant fails to cite any authority to sustain his contention as applicable to such a case as this. It is conceded that, had Craft continued in business alone after January 1, 1890, and plaintiff had remained in his employ after his last year’s service, a contract to employ him another year on the same terms might have been implied. If there was such an implied contract to employ him in this case, it was made after January 1, 1890,—that is, after the formation of the copartnership,—and was implied because plaintiff had been employed by Craft some years prior to January 1, 1890, and after the formation of the firm, and continued in their employ. In fact it is a well-settled principle that where parties have entered into a contract for service for a certain period, which has elapsed, and their connection still continues, they are deemed to have renewed the contract by tacit relocation without any new agreement being entered into. 14 Amer. & Eng. Enc. Law, 770, 771. But we are of opinion that this principle does not apply to such a case as this. The connection between Charles C. Craft and plaintiff was not continued. The firm of Charles C. Craft & Co., composed of said Craft, Benjamin M. Secor and Josiah D. Chapin, is an entirely different party from the one who employed plaintiff prior to and up to January 1, 1890. At that time Craft ceased to do business, and a copartnership took his place, and there could be no renewal of the contract then existing between Craft and plaintiff, unless by an express contract. Certainly the plaintiff failed to show any renewal of the contract existing between Craft and himself, because it was not made to appear when the personal agreement between Craft and the plaintiff terminated, or in fact that it was ended prior to the discharge of plaintiff by the defendant. Also it does not appear that one of the defendants (Secor) ever knew the terms of the contract between plaintiff and Craft. The plaintiff, therefore, failed to show any contract with defendants to employ him for any definite length of time, and the trial judge properly granted a nonsuit. See Morrison v. Railroad Co., 52 Barb. 173 -182. There was no question of fact for the jury. There was no evidence given from which the jury could have properly found an agreement on the part of defendants to employ plaintiff for a year. We also think that the position taken by defendants, that if there were a contract of employment for a year between the defendants and plaintiff, as claimed by him, the said firm having been dissolved by the death of Charles C. Craft, such contract was thereby terminated, and defendants could therefore lawfully discharge the plaintiff, is correct. Greenburg v. Early, 4 Misc. Rep. 99 , 23 N. Y. Supp. 1009 ; Lacy v. Getman, 119 N. Y. 109 , 23 N. E. 452 . The court properly refused to allow plaintiff to amend his complaint on the trial; but, as no exception was taken to such refusal, this point does not require any discussion. The judgment should be affirmed, with costs.

MAYHAM, P. J., and HEBBICK, J., concur in result.

Cases cited

Vail v. Jersey Little Falls Manufacturing Co. 32 Barb. 564 N.Y. Sup. Ct. 1860-09-17 p. 571
Morrison v. Ogdensburgh & Lake Champlain Railroad 52 Barb. 173 N.Y. Sup. Ct. 1868-10-06 p. 571
Greenburg v. Early 4 Misc. Rep. 99 N.Y.C.P. 1893-06-05 p. 571
Lacy v. Getman 119 N. Y. 109 N.Y. 1890-01-14 p. 571