Gray v. Shepard — 69 N.Y. St. Rep. 530

Majority

p. 530

Frank S. Gray, App’lt, v. Augustus D. Shepard et al., as as Executors of Elliot F. Shepard, Deceased, Resp’t.^[1]

(Court of Appeals,

Filed October 8, 1895.)

Headnote

1. Evidence—Parol.

The largeness of the meaning of a term, used in a contract, is no reason for limiting its interpretation, nor furnish any reason for permitting paroi evidence in explanation.

2. Master and servant—Discharge.

The refusal by a servant to deliver to the master a memorandum, relating to the current business which was intrusted to him by, and belongs to, the master, is a breach of duty and good cause for his discharge.

3. Same—Retention.

The retaining by the master of the servant in his employment, after knowledge of violations of duty, is not such a condonation of these offenses as to prevent their use thereafter as grounds for discharge, where such violations were committed from time to time, continuing until the discharge.

Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of the original defendant, Elliott F. Shepard, entered upon a verdict, and also approved an order denying plaintiff’s motion for a new trial.

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The original defendant died while the appeal to the general term was pending, and his executors were thereupon substituted in his stead.

A. J. Ditlenhoefer and David Gerber, for app’lt; Noah Davis and A. L. Pincoffs, for resp’ts.

This action was brought to recover damages alleged to have been sustained by the plaintiff in consequence of his wrongful discharge by the original defendant Shepard from his employment on the Mail and JSxpress, a newspaper in the city of New York. The employment was under a written contract dated April 18, 1888. By the contract the plaintiff undertook to devote his whole time (Sundays excepted), and all his energies and talents, “ to pushing the publication, subscription, circulation, advertising, influence and all the interests of said newspaper, and in every method he may devise, or be advised or directed, to be approved by Mr. Shepard, and in no way against Mr. Shepard or his successor’s interest.” The contract was to continue for five years, and the plaintiff was to receive as compensation for his services $6,000 a year, and in addition, during each of the last three years, was to be credited $5,000 towards the purchase of an interest in the paper. The contract provided that, “ for any dishonesty, incapacity, incompatibility or breach of the agreement,” on the part of the plaintiff, Mr. Shepard should be at liberty to annul and cancel it. On the 4th day of January, 1890, Mr. Shepard notified the plaintiff, in writing, that under the option in the contract he annulled it for the plaintiff’s “ dishonesty, incapacity, incompatibility and breaches of the agreement.” The answer alleged that the discharge was justified by the conduct of the plaintiff, the unfaithfulness, dishonesty and incompetency, and because his habits and manners were such as to produce incompatibility between him and the employer and other persons connected with the business. The jury rendered a verdict for the defendant, and the only questions before us arise on exceptions taken upon the trial.

The plaintiff offered to prove a conversation between himself and Mr. Shepard when the contract was presented to him and before its execution, in which Mr. Shepard, in reply to an inquiry made by the plaintiff as to the meaning of the word “incompatibility ” in the contract, said that “ it meant that he should have the right to discharge you if at any time you were unsuited to newspaper work, or tired of newspaper work, and that is all it meant.” The judge excluded the evidence and the plaintiff excepted. This ruling was proper. The plaintiff, by the evidence offered, sought to limit the meaning of a word in common use, the only indefiniteness of meaning consisting in its wide application, and which, for that very reason, as may be inferred, was introduced into the contract. The elements and qualities which may create incompatibility between persons elude exact definition, so varied are the circumstances and so dependent is such a state of feeling upon education, habits of thought and peculiarities of character. It must be assumed that the parties understood the wide signification of

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the word and used it understandingly. The service to be rendered involved mutual confidence between the parties and intimate personal association. Want of harmony between them for any cause would be likely to interfere with the newspaper enterprise and made the insertion of this ground for discharge natural and reasonable. The word is not a word of art, or of technical or local meaning, or having two distinct meanings, circumstances which have been held to justify paroi evidence of tne meaning of a word used in a written contract. Green, on Ev. § 295. The largeness of the meaning of the term used in the contract is no reason for limiting its interpretation, nor does it furnish any reason for permitting paroi evidence in explanation. Whether there w.as incompatibility which justified the discharge was a question for the jury upon the evidence. The employer could not allege in- ■ compatibility as a pretense for discharging the plaintiff. The incompatibility must have existed in fact to justify a discharge under this term of the contract.

The defendant, among other things, sought to justify the discharge of the plaintiff by reason of his conduct in respect to a memorandum sent by him from Bar Harbor July 28, 1888, and one of the exceptions relied upon by the plaintiff is to the charge of the "judge upon that subject. On the 28th of July, 1888, the defendant being at Bar Harbor, sent by mail to the plaintiff in New York a pencil memorandum without date or signature, relating to the subject of procuring for the “Mail and Express" certain public printing which was controlled by the police commissioners of the city of New York. The memorandum was inclosed in a letter envelope with the defendant’s check for $5,000, payable to the order of the plaintiff. The memorandum referred to the subject of commissions to be paid for the printing contract. The printing was given to some other paper. In August, 1888, the defendant having returned from Bar Harbor, asked the plaintiff for the check and memorandum. The plaintiff returned the money but told the defendant he had destroyed the memorandum. Subsequently differences arose between the parties, and the defendant desired to' dissolve the relation between them. The defendant testified in substance that when these latter differences arose, the plaintiff threatened that the defendant would not dare to discharge him because of the memorandum, which he then said he had not destroyed, and he refused on request of the defendant to give it to him. In fact the plaintiff had not destroyed the memorandum and it was produced on the trial. He testified: “I have kept it all the time in the safe deposit vault of the National Park Bank.” It was. claimed on the part of the plaintiff that the check of $5,000 was sent to be used to influence the police commissioners to award the printing contract to the “Mail and Express,” and that the memorandum confirmed this view. The defendant on the trial denied under oath that the check was sent for the purpose claimed, and explained the allusions in the memorandum consistently with an honest purpose. The jury found the version of the transaction given by him and were authorized to find that the plaintiff preserved the memorandum, to be used as

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a means of coercing the defendant to retain him in his employment. It appeared that it was the custom of the defendant to give directions to his employees by informal written' memoranda in pencil, without date or signature, in the same form as the one in question. The judge, in his charge to the jury, referring to the transaction alluded to, said : “According to Mr. Gray’s testimony, the paper was given to him by the defendant as .his manager. Whatever its contents or whatever its purpose, it was given in the course of his employment, and the master would have the right afterwards to demand that or any other paper which he had intrusted to his employee, and he would have no right to refuse it. That which the master had a right to demand, if it shall be refused by the employee, is necessarily a breach of the agreement existing between them.” He further charged: “If you come to the conclusion that there was a breach of the contract with reference to the matters I have submitted to you, I charge you as matter of law it is your duty to render a verdict for the defendant.” The plaintiff’s counsel excepted to the charge in the following language: “ I accept to that portion of the charge where the court said in substance that the master would have a right to demand from the servant the return of the letter concerning the advertisement sought to be procured from the police department for the “Mail and Express,” and that what the master has the right to demand, which shall be refused, is nccesssarily a breach of the contract of service.” It will be observed that no question was made as to the "correctness of the assumptions of fact in the charge that the memorandum was given by the defendant to the plaintiff as the manager, and that it was a paper intrusted to the plaintiff by his employer. The plaintiff seeks to apply to the case the rule that an agent has the right to retain letters written to him by the master relating to his agency, which may be necessary for his protection. The case in question does not come within the rule. The memorandum was like any other order relating to the current business, which, when it had served its purpose, belonged to the defendant. The plaintiff had no interest to protect in keeping it. He had returned the money, and that was an end of his responsibility. He made no claim that the retention of the memorandum was necessary for any laudable or honest purpose. On the contrary, he informed the defendant at the first interview that he had destroyed it. We think the judge correctly charged, in view of the circumstances, that the plaintiff’s refusal "to deliver the memorandum to the defendant was a breach of duty and was good cause for his discharge.

The claim that the defendant, by retaining the plaintiff in his employment after knowledge of violations of duty, thereby condoned these offenses, and that they could not thereafter be used as grounds for discharge, is without force in view of the fact that his violations were committed from time to time, continuing until the discharge. The master may overlook breaches of duty in the servant, hoping for reformation; but, if he is disappointed and the servant continues his course of unfaithfulness, he may act, in

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view of his whole course of conduct, in determining whether the contract of employ met. t should be terminated.

We find no error in the record, and the judgment should be affirmed.

All concur.

Judgment affirmed.