Haines v. Thompson — 51 N.Y. St. Rep. 221

Majority

p. 221

Annie Haines, Resp’t, v. Denman Thompson et al., App’lts.^[1]

(New York Common Pleas, General Term,

Filed February 6, 1893.)

Headnote

1. Contract — Statute of frauds.

A contract for services to commence in futuro, and to endure for " thirty-five or forty weeks, perhaps a year,’’ is not necessarily one for a year, and not within the statute of frauds, and hence need not be in writing.

2. Same — 'Theatrical—-Evidence.

An oral contract for the services of an actress provided that plaintiff should be engaged the same as the rest of the company, “two weeks notice on either side.” Held, that evidence to show that this phrase had a definite and well understood meaning in the making of such contracts was admissible as showing that both parties understood it in a particular sense.

Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff, which was entered upon a verdict; and affirming also an order refusing a new-trial.

Action to recover damages for defendants’ breach of a contract for the employment of plaintiff’s services as an actress by her alleged wrongful discharge.

David Gerber, for resp’t; Edward Brown, for app’lts.

An order of the city court of New York which refuses a new trial is not appealable to this court. Code Civ. Pro., § 3191; Wilmore v. Flack. 96 N. Y., 512 ; Smith v. Pryor, 169; 30 St. Rep., 553 .

The contract of employment was made in June, 1888, the services thereunder to commence on the 23d day of August following. It was oral, and construing the evidence most favorably for defendants, was to the effect that the employment should endure for “ thirty-five or forty weeks; perhaps a year.” No obligation

p. 222

was thereby created to continue the employment for a year, and hence the contract was not Within the statute of frauds, and was not required to be in writing. Blake v. Voight, 45 St. Rep., 606 ; Court of Appeals, May 31, 1892.

But we are of the opinion that the trial court erroneously excluded evidence offered by defendants, which tended to show that the words “two weeks notice on either side” had a definite and well understood meaning in the making of contracts for theatrical services, and that plaintiff so understood them. In Hannay v. Zerban, 16 Daly, 372 ; 33 St. Rep., 653 , we held that parol evidence of the meaning of a somewhat similar phrase was inadmissible to add to the contract. But that was the case of a written contract, and so is inapplicable here. Nor was the error excluding the evidence in the present case cured because defendant Ryer was subsequently permitted to testify to his own understanding of the phrase, since that did not show plaintiff’s understanding of it; or because the court charged the jury that “ defendant testifies positively that he told her, plaintiff, it was on two weeks notice. If you find that to be so, of course you find that that was the contract, not a custom.” No evidence which tended to show that plaintiff understood the phrase in any particular sense was permitted to go to the jury.

It appeared on the trial from her own admission that plaintiff was discharged upon a previous notice of two weeks. The complaint alleged that plaintiff was employed for the season commencing on or about August 23, 1888, and ending on or about June 1, 1889, and that she was wrongfully discharged. The answer denied this. Defendant Ever, with whom the contiact was made, testified that at the time of making it he said to plaintiff “ You must become engaged here like all the rest of the company, two weeks notice either side.” He further testified that the phrase “ two weeks notice either side ” had a well known meaning in the theatrical profession, and the question, what does it mean ? was excluded on the ground that the right to terminate the employment upon two weeks notice was not specifically pleaded by the answer.

It is, however, a well settled rule of pleading that under a denial the defendant will be permitted to give in evidence anything which disproves the allegations of the complaint, O'Brien v. McCann, 58 N. Y., 373 , and by showing what the contract really was, that it was not as alleged in the complaint. Marsh v. Dodge. 66 N. Y., 533 ; Bien v. Abbey, 36 St. Rep., 791 ; W heeler v. Billings, 38 N. Y., 263 ; Hier et al. v. Grant, 47 id., 281 . " Evidence that “ two weeks notice either side ” was part of the contract tended to disprove that the contract was as alleged in the complaint, and evidence that this phrase was understood by both parties to mean that either party was at liberty to terminate it upon two weeks previous notice to the other certainly tended to disprove the alleged breach of contract on defendants’ part, the wrongful discharge of the plaintiff. The attempted proof of the meaning of the phrase “ two weeks notice either side ” was not to show that there was a custom in the theatrical profession

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whereby either of the parties could upon two weeks notice to the other terminate any contract; but that, if defendants’ version of the contract be true, a seemingly obscure part of it was undergtood by both contracting parties in a particular sense. The evidÉice offered and excluded thus tended to establish an integral part of the contract.

The judgment appealed from should be reversed and a new-trial ordered; with costs to appellants to abide the event

Daly, Oh. J., and Pryor, J., concur.