Arentz v. Morse Dry Dock & Repair Co.

• Decision Date: 07 December 1928
• Court: New York Court of Appeals Court of Appeals
• Parties: ARENTZ v. MORSE DRY DOCK & REPAIR CO.

249 N.Y. 439

164 N.E. 342

ARENTZ

v.MORSE DRY DOCK & REPAIR CO.

Court of Appeals of New York.

Dec. 7, 1928.

Action by Frederic C. H. Arentz against the Morse Dry Dock and Repair Company. From a judgment of the Appellate Division (222 App. Div. 831, 226 N. Y. S. 767), affirming a judgment of nonsuit dismissing the complaint, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Elwood Colahan and Cyril S. Stanley, both of New York City, for appellant.

Courtland Palmer, of New York City, for respondent.

CRANE, J.

This action is brought for the breach of an alleged contract of employment. The defendant is engaged in a general dry dock and ship repairing business with its shipyard at Fifty-Sixth street, Brooklyn, N. Y. The plaintiff, prior to the month of January, 1920, was a sea captain by profession, holding an unlimited Norwegian master's license for sail and steam vessels. Having given up the sea during the war, the plaintiff came to reside with his wife in the Province of New Brunswick, Canada, where he was engaged in farming. A relative in Philadelphia having called his attention to an advertisement for help, which the defendant had inserted in the newspaper, the plaintiff answered it, and was subsequently engaged as an assistant to the president, Mr. Morse. The plaintiff commenced work for the defendant in January of 1920, and remained until January of 1924, when he was discharged because of hard times, or the slackness of business. At first he received a salary of $4,800 a year, which was increased to $6,000 a year, payable monthly.

The plaintiff seeks damages for his discharge, because he alleges and attempts to prove that he was employed for life, or at least for as long a time as the defendant remained in business. The allegation in his complaint is that the plaintiff and defendant entered into an agreement wherein and whereby, among other things, the plaintiff agreed to give up his business and profession as a shipmaster and to enter into the permanent employment of the defendant in New York City, as assistant to the vice president and general manager.

An agreement to employ the plaintiff in such a position for life is so unusual that we would expect to find it contained in some writing. On the contrary, the plaintiff has sought to establish it in the conversation which he had with Mr. Morse when engaging and taking him into his employ, and rests it entirely in the use by Mr. Morse at that time of the word ‘permanent.’ The plaintiff says that Mr. Morse told him that his work or position would be permanent. An understanding of the relations of these parties will, I think, clearly indicate that no such extensive agreement was made as is claimed by the plaintiff.

The plaintiff was a Norwegian sea captain who, because of the war, or for other reasons, had retired to a farm which his wife owned in the Province of New Brunswick, Canada. He tried of farming and thought of going into business or some employment for which his experience had fitted him. The Morse Dry Dock & Repair Company needed help, and apparently had inserted an advertisement in the papers to get the required assistance. The plaintiff's attention was called to the advertisement; he communicated with Morse and came to New York. What occurred is stated by the plaintiff as follows: ‘I told Mr. Morse I came down to see him in answer to his wire about the position or opening he had with the Morse Dry Dock & Repair Co. I showed Mr. Morse my credentials. He had discharged his son and he wanted more help, and I showed him my credentials, and Mr. Morse wanted me to start right away, and told me that ‘Your salary is $4,800 a year; your headquarters will be the New York office, and I want you as my assistant.’ I told Mr. Morse that I had been following the sea for twenty years and I would never think of taking a position anywhere except it was of a permanent character, and Mr. Morse referred to having had men working for him for thirty years and more, and right there I accepted Mr. Morse's offer and accepted the position. He told me it was a permanent position and said that the salary would be increased as business improved.'

Assuming all this to be true, what did the parties mean by the use of this word ‘permanent’ position? Did Mr. Morse engage the plaintiff for life on such short acquaintance, or did he simply intend to convey the meaning that the position was steady employment, steady work, not that of a temporary nature? Building a ship is temporary work; when the ship is finished, the employment is at an end, so far as that one ship is concerned. The same may be said about the job of painting a house, or a fence. A lawyer may have occasion to employ extra help under presure. Such employment is merely temporary as compared to the steady work of the regular employees. Many businesses have employes who are extras, or fill temporary positions only required for a particular job or during certain seasons. That this is the sense in which these words were used in talking with the plaintiff is to be gathered from the language of the plaintiff himself, when speaking of his other employments. After his discharge, he was employed by engineers, the Sherman Corporation, and by Swift & Co. He says of such work: ‘That was a temporary position. I started in March and finished in July. * * * I just made a general inverstigation for Swift & Compan...