Greenburg v. Early — 53 N.Y. St. Rep. 130

Majority

p. 130

Joseph Greenburg, App’lt, v. Mary A. Early, Individually and as Executrix, Impl’d, Resp’t.

(New York Common Pleas, General Term,

Filed June 5, 1893.)

Headnote

Master and servant—Termination of employment by death of

^PARTNER IN EMPLOYING FIRM:.

A contract of employment as salesman for a fixed term by a firm ends

on the dissolution of the firm by the death of a member thereof.

Appeal from a judgment entered upon the dismissal of the complaint at trial term.

Waller M. Rosebault, for app’lt; John Delahunty, for resp’t.

This action was brought to recover $874 for breach of a contract of employment. The detense was substantially a general denial. The plaintiff was a salesman in the employment of John Early & Co., a firm composed of John Early and Patrick Cavanagh, únder a yearly contract expiring January 1st of each year. On the 23rd of March, 1891, Mr. Early died, leaving a will which was probated, under which the defendants

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qualified as executors. When Mr. Early died the plaintiff was traveling for the business and was allowed to continue on his trip for three weeks longer, and when he came back the defendants, or one of them, said to him, “You boys can consider yourselves discharged.” In reply to which the plaintiff said, “I told him that I did not consider myself discharged; that I held the estate of John Early responsible for the year 1891, according to my agreement.” It is claimed on behalf of the respondent, Mrs. Early, that the death of John Early put an end to the contract between the plaintiff and the firm of Early & Co., and that the new employment of the plaintiff by Mrs. Early not having been, according to the testimony adduced by the plaintiff on the trial, for a fixed period, either party was entitled at any time to terminate it, and Mrs. Early having done so in the month of June, 1891, and paid the plaintiff in full up to that time, the contract was terminated. And this contention we think is well sustained. Campbell v. Jimines, handed down herewith, 52 St. Rep., 495 ; Wood's Master & Servant, 2nd ed., 483.

Where there is no provision in a copartnership for its continuance after the death of any of the partners, the copartnership is thereby dissolved. There did not ‘ seem to have been any such provision in the copartnership under consideration, and, as a matter of fact, it was dissolved, and the other member of the firm went out, and the business was turned over to Mrs. Early to wind up. In Wood’s Master & Servant (2d ed.), § 165, it is said: “ Where a servant is employed by a firm, a dissolution of the firm dissolves the contract, so that the servant is absolved therefrom, but°if the dissolution results from the acts of the parties, they are liable to the servant therefor; but if the dissolution results from the death of a member of the firm, a dissolution resulting by operation of law, not from the act of the parties, no action for damages will lie. * * * The test is whether the firm is dissolved. So long as it exists, the contract is enforced; but when it is dissolved, the contract is dissolved with it, and the question as to whether damages can be recovered therefor will depend upon the question whether the dissolution resulted from the act of God, the operation of law or the act of the parties.” And in this case it is clear that it resulted from the act of God and operation of law, and consequently there can be no recovery. Lacy v. Getman, 119 N. Y., 109 ; 28 St. Rep., 546 ; Griggs v. Swift, 82 Ga., 392 . In Addison on Contracts, p. 653, .bottom paging, Abb. ed., 1883, it is said: “ A contract of hiring and service is dissolved by the death of the master or servant. If the contract is made with" a. firm in partnership to serve the firm for a certain term, the contract is dissolved by the death of one of the parties.” Citing- Farrow v. Wilson, L. R., 4 C. P., 744; Tasker v. Shepherd, 6 H. & N., 575; 30 L. J., Ex., 207.

As far as we have found, there .is no case in this state in conflict with these decisions. They are founded on the principle alluded to by Judge Bischoff in Fisher v. Monroe, 16 Daly, 464 ; 34 St. Rep., 760 , where he says : “ To render the contract operative and binding upon the parties at its inception, the obligation of

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the contracting parties must-be mutually dependent, that is to say, the obligation of the party who is to receive .the services, to pay, is conditioned upon the obligation of the party who is to render the services; to perform, and vice versa." If the employe dies, the employer has no remedy against his estate; his death puts an end to the contract; it is but just that the same results shall follow from the death of the employer. The principle is still more obvious in the case of a copartnership which is dissolved by operation of law when one of the partners dies.

Another reason that the authorities assign for putting an end to the contract is that the services which the plaintiff was employed to perform were, skilled services, where the .employe is not a mere laborer. And the plaintiff as a salesman was expected to perform skilled services, and in such a case the death of either party terminates the contract. Spalding v. Rosa, 71 N. Y., 40 ; People v. Globe Ins. Co., 91 id., 179 ; Martin v. Hunt, 1 Allen, 418 .

We have carefully looked over the evidence in this case, and do not find that there is any proof to sustain the plaintiff’s contention that the contract of employment previously existing with the firm of John Early & Co. was assumed by the executrix, or that there was a new contract of hiring for the remainder of the year. The contract with the executrix, as before stated, being without any fixed time.

The judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.

— On the 1st of January, 1891, the firm °of John Early & Co. hired the plaintiff as a travelling salesman period of one year. On the 23d of March next ensuing the copartnei'ship was dissolved by the death of Early, and the defendant. as executrix of his will, took possession and control of the firm assets and' business; but whether for the purpose of winding up or continuing the business is disputed upon the evidence, and is unimportant in the disposition of the appeal.

That a contract of service of the kind before the court is canceled by the death of the employer is. not now an open question in this state. Lacy v. Getman, 119 N. Y., 109 ; 28 St. Rep., 546 .

The proposition that such a contract is terminated by the dissolution of a copartnership employer seems not to have been adjudged in this state, and may not be affirmed on the authority of uniform decision. In this country, it is supported by one express adjudication, Griggs v. Swift, 82 Ga., 392 ; 14 Am. St., 176; and disputed, by another. Fereira v. Sayres, 5 Watts & S., 210 ; 40 Am. Dec., 496 . The text writers appear to accept it implicitly. Wood on Master & S., § 163; 2 Addison on Cont. (Morgan’s ed.), § 901; Lawson on Rights, etc., § 283. The preponderance, therefore, of authority is ■ in favor of the proposition. How stands it on principle ?

If the plaintiff be regarded as an agent of the firm, on its dissolution. the relation undoubtedly ceased, because an agent is merely the representative of his principal, and if there be no

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principal there can be no agent. “ There is a manifest absurdity in doing an act in the name of a person no longer in being.” Bank v. Vanderhost, 32 N. Y., 553 , 555. The death of a partner operates an immediate dissolution of the copartnership, Parsons on Partnership, 397, and, therefore, the authority of a previously appointed clerk absolutely ends. McNaughton v. Moore, 1 Hayw., 189 . The rule, of course, is inapplicable to an agency coupled with an-interest; but the right of the plaintiff to.a commission proportioned to sales, does not constitute a power coupled with an interest within the exception" to the general principle. Houghtaling v. Marvin, 7 Barb., 412 .

Supposing the plaintiff to be a servant rather than an agent, still the conclusion is inevitable that the dissolution of the partnership by death terminated his employment. The decision in Lacy v. Getman, 119 N. Y., 109 , 115, 116; 28 St. Rep., 546 , proceeded upon the ground of a personal trust- and confidence between the employer and the employe, and held that such trust and confidence on the part of the employe cannot be transferred by operation of of law to a substituted employer. The reason of the rule is equally prevalent between a copartnership employer and its servant. In the case at bar, for instance, the plaintiff had engaged to serve John Early and Patrick Kavanagh, not Patrick Kavanagh alone; still less Patrick Kavanagh and Mary A. Early, executrix of John Early. He might be willing to trust and obey John Early and Patrick Kavanagh," but not at all willing to trust and obey Kavanagh alone, or Kavanagh and Mary A. Early, just as the employe of a single person might be willing to engage- service with him, but not with his executor.

Employed by the partnership and not by its individual members; engaged to serve the partnership and not its individual members, plaintiff’s relation to the partnership-was dissolved necessarily by its dissolution.

As well, therefore, upon principle as authority, we conclude that the contract of the plaintiff with the firm of John Early and Company terminated on the dissolution of the copartnership by the death of Early.

The defendant is sued, however, as well in her personal as her representative capacity; and plaintiff’s alternative claim is upon a contract- with her. Conceding his employment by the defendant, it was terminable at will, because for no definite period, Campbell v. Jimenes, decided the present term, 52 St. Rep., 495 , and he was duly discharged upon payment for his services.

Judgment affirmed, with costs.