Neff v. Friedman — 32 N.Y. Super. Ct. 607

Majority

p. 607

DIONUS NEFF, Plaintiff and Respondent, v. MAX FRIEDMAN and Others, Defendants and Appellants.

[Decided December 3, 1870.]

Headnote

Parol testimony to explain the meaning of “unavoidable accident ” excluded. The • words “unavoidable accident” are synonymous with “inevitable accident.”

Before Monell and Spencer, JJ.

This was an appeal from a judgment and from an order denying a motion for a new trial.

The judgment was entered upon a verdict of a jury rendered in favor of the plaintiff for an amount alleged to be due to him from defendants, for his services as a foreman of a factory for the manufacture of cork hats, under a written contract dated at Philadelphia, August, 1866, by the terms of which plaintiff was to receive $30 per week from the defendants. The last clause of the said contract reads as follows:

“ This agreement to stand and hold good for the term of one year from this date, unless it be rendered void by unavoidable accident, breach of faith in either party, or by mutual consent.”

The defense consisted of a denial of the facts set forth in the complaint, except the alleged partnership of the defendants and the execution of the contract.

On the trial the plaintiff and defendant were the only witnesses examined. Their testimony, bearing upon the points at issue, was as follows:

The plaintiff testified that he resided at Ro. 154 East Fourth street, in the city of Rew York; that he was a cap-maker; that he went into the service of the defendants under said contract at Philadelphia, and continued to work for them there about eight months, ceasing work on the 20th day of April, 1867.

“ On the 21st day of April Hr. Friedman sent me word that I

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should stop work; I did not see him, for he had left Philadelphia; my family was in Hew York; next Saturday Mr. Friedman returned to Philadelphia, and I remained in Philadelphia; I asked him why I should quit work; he said that at present they had goods enough, and wanted to stop for a few weeks; I then asked him how it was, as he had given me a contract for a year; he replied, that the contract did not amount to anything, as he had told me that he would give me work as long as he had work, and no longer; I had told him before that I could not go on such conditions unless he would give me a contract for a year, which he did; then Mr. Friedman said he wanted to stop for a week or two; I said I would agree to that, if he would pay me one-half my wages, but I was not willing to stop any longer; Mr. Friedman then told me to meet him at the Metropolitan Hotel, in Hew York, and that he would pay me for two weeks there; on the strength of this I came to Hew York, and I met him at the Metropolitan Hotel on the 27th April, and he paid me $20; about three or four days after this he gave me $10 more; he then asked me if I had anything to do; I said Ho; he said, Wait about a fortnight longer; about a fortnight afterwards he paid me $15 more: he then went into his office, wrote a receipt and asked me to sign it; I asked him why; he told me to read it; I told him I could not read English; I wanted him to tell me the meaning of the receipt; he told me the receipt was to show he had paid me $15 for the week; I asked him why he did not require a receipt before and why he required it this time; he told me the receipt was to show his partners that he paid me $15 for the week; I then signed it, and he gave me the $15; I did not read the receipt.

“ I saw him after this, but never got any more money; he told me they would commence work again by and by, and he would give me a chance.

“ Subsequently, I told him I should have to try a different course; I told him he would have to give me work and pay me, or I would have to do something different. The season was over and I could not get another place.”

p. 609

The testimony of the plaintiff in regard to what transpired prior to the meeting at the Metropolitan Hotel was not contradicted nor varied by the testimony of the defendant, Max Friedman, which was substantially as follows:

“After Mr. Heff had left Philadelphia, he called on me by appointment at the Metropolitan Hotel. He said he had nothing to do, and would like me to give him some money; I gave him $20. A few days afterward he came again. I said, I do not like to have you running after me. I do not owe you anything; you know the contract was such, that in case we could not get any cork, and consequently could not work, that the contract was ended.’ He said he needed some money; I said I would give him $15 if he would give me a receipt in full for all claims; he agreed to give it. I wrote and translated it to him. I told him that it was a receipt in full of all demands and all claims; that as we could not get any cork we could not work. He then signed it, and I paid him the money.

“ I have never conversed with him since. He has never tendered to me his services. At that time he only said he wanted some money. He did not tender his services.”

On the cross-examination, the witness testified: “ When I last paid Mr. Heff, he did not ask when he could work again, nor express his willingness to go to work at any time I wanted him. He did not say that he insisted upon his contract for the balance of the year. I never saw him after that receipt was given, to my knowledge, except once, when I met him in the street a few weeks ago. I read him the receipt in English and German.” Defendant also testified that the receipt was lost. That it was a receipt in full of all claims and demands.

Other portions of the testimony and exceptions thereto appear in the opinion.

Mr. Wm Henry Arnoux for appellants.

Mr. Charles Goepp for respondent.

p. 610

By the Court:

The main questions in this case were questions of fact—namely: the employment of plaintiff under the contract, and his discharge by the defendants, and their subsequent neglect or refusal to continue the employment of defendant—and were properly submitted to the jury by the court below.

The jury had a right to accept the testimony of plaintiff as-to what transpired after he went to New York, and to reject that of defendant, and assuming that they did so, there was sufficient evidence to sustain their verdict; but the fact testified to by plaintiff that he was actually discharged from the service of the defendants, by the order of defendant, Max Friedman, is not contested nor denied. The fact that plaintiff afterwards, at the request or by the order of defendant went to New York, and there met him for further orders, and for payment of the week’s wages due on the 21st of April, does not change the effect of •this discharge at the latter date.

Under these facts and circumstances, I am of the opinion that no formal tender of service was necessary; but if I am wrong in ■this conclusion, it appears to me that it sufficiently appears from .the evidence that the plaintiff met defendant Max Friedman afterwards as directed, and held himself subject to his order ,* in ■other words, “ was ready and willing to resume work under the contract,” and I think the jury had a right to base a verdict upon •those facts, and it should be sustained.

H the foregoing views are correct, it follows that the ruling of the court, in refusing to nonsuit or to dismiss the complaint, was correct, and thus I hold. I also think the court below was right in the exclusion of the testimony offered by defendant, to explain the meaning of words “ unavoidable accident,” as used in the contract.

This was not .a qualification or limitation in the contract that required any notice in the complaint, nor one in reference to which plaintiff was bound to furnish any testimony. The cases •cited by appellants’ counsel are not in my opinion applicable to

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a clause of this kind in a contract. The forms of bills of lading and common carrier contracts that recite the exceptions of “the dangers of the seas,” “the act of God, and the public enemies,” etc., are of a kindred character to the exceptions in this contract. Although it might be a proper matter of defense for defendants to plead and prove that this contract was rendered void by “ unavoidable accident,” “ breach of faith” or by “ mutual consent,” yet I think it was not incumbent upon plaintiff to charge or prove the negative proposition, that none of the facts or acts embraced in these several exceptions had occurred. The words “ unavoidable accident ” are synonymous with “ inevitable accident.” The latter words, and their meaning and effect, have been considered and interpreted many times by our courts. They have been considered as intelligible to the courts, and as plain and unambiguous, and having a clear and accepted meaning.

Ho evidence as to the meaning of the words “ unavoidable accident ” could have been properly received by the court or submitted to the jury. The defendants proposed to show that a prospective "lack of material of manufacture was embraced in these words, a meaning so contrary and inconsistent with the ordinary and accepted interpretation of the same, that any person of ordinary understanding of the English language would readily perceive that the effect and terms of a contract in writing might be destroyed by the introduction of such testimony, and I hold it was properly rejected by the learned judge before whom the case was tried.

The only other exception in the case that I think demands consideration, is that to the ruling of the court in excluding the answer to two questions asked of the plaintiff:

First.—Had you nothing to do after you came to Hew York prior to the 17th day of August, 1867 ?

Second.—Prior to the 17th day of August did you endeavor to obtain a situation %

Immediately prior to these questions being asked, the witness had stated upon defendants’ inquiry (in substance) that since

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he came to New York he had been looking for work and could get none, and immediately after these questions were excluded • by the court, the following questions and answers occurred :

Q. Between the 22d of June, 1867, and the 17th August, 1867, did you endeavor to obtain a situation ?

A. I did.

Q. Where %

A. I called at Haldeberg’s, Broadway, Wolf’s and several other places, but the season being over, I could not get work; also applied to Silverman, Broadway. I worked in my own house between the 22d of June, 1867, and the 17th of August, a little,but don’t think I earned $5 during the whole time. ■

I hold that these last questions and answers brought out and fully established, as evidence in the case, the facts sought by the excluded questions; or in other words, the evidence sought by the defendant in the questions, excluded, was introduced and obtained by and allowed to him under another form of question; and if there was error in the exclusion of the evidence under the first questions, it was corrected and obviated by its reception under the subsequent questions, and I can see no cause for a ■ reversal on account of these exceptions. The requests made by defendant to the court to charge, and which were refused, and exceptions taken, were based upon the condition or hypothesis that plaintiff had left the factory and service of defendants at Philadelphia voluntarily, and without the consent or assent of defendants. The only testimony upon that point is that of plaintiff heretofore reviewed, which shows or tends to show that plaintiff was discharged by defendants, and that he left in consequence thereof, and went to New York by request of defendants.

■ I think the evidence did not authorize the court to charge as requested, and it would have been error to have done so, or at least the court was not bound to charge as requested upon the evidence before it.

The exceptions should be overruled, and the judgment of the court below sustained.