Blumenthal v. Shaw

• Decision Date: 06 January 1897
• Docket Number: 10.
• Parties: BLUMENTHAL et al. v. SHAW.
• Court: U.S. Court of Appeals — Third Circuit

77 F. 954

BLUMENTHAL et al. v. SHAW.

No. 10.

United States Court of Appeals, Third Circuit.

January 6, 1897

Willard Saulsbury and Sol Kohn, for plaintiffs in error.

Samuel A. Macallister and Herbert H. Ward, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and BUTLER, District Judge.

ACHESON Circuit Judge.

The view which we take with respect to the merits of this case renders it unnecessary for us to consider the motion to dismiss the writ of error. F. Blumenthal & Co., the defendants below, who were morocco manufacturers having their headquarters and residence in the state of New York, carried on a factory in the city of Wilmington, Del., through agents intrusted with the management of the same. Their superintendent of the Wilmington factory was Daniel Pierson Jr., who had general charge of the concern. At this factory the plaintiff below, Mark A. Shaw, was in the service of the defendants, ostensibly as their apprentice. The defendants were the successors in business at the Wilmington factory of one Charles Mullin. On May 7, 1888, while Mullin was conducting the business, an agreement in writing was entered into between him (Mullin), Mark A. Shaw, the plaintiff, and Robert C. Shaw, the father of Mark, who was a minor, whereby Mark entered into the service of Mullin, as an apprentice for a term of four years, to learn the trade of shaver. The parties to this agreement acted under it as if it were valid statutory indenture of apprenticeship, although in fact it was not. When the defendants succeeded to the establishment they took, by transfer from Mullin, whatever rights he had under this paper, and the plaintiff, Shaw, remained with the defendants under the agreement; all parties treating it as a subsisting, valid indenture of apprenticeship. About the last of February, 1890, Cornelius Mundy, the defendants' general foreman, on account of some dissatisfaction with the plaintiff, ordered his discharge. The discharge, as communicated to Shaw by the boss shaver, was peremptory in terms; and the plaintiff, understanding it to be an absolute dismissal, left the establishment, and sought work in other morocco factories in Wilmington. Thereupon postal cards were sent out from the defendants' office, addressed to other morocco manufacturers in the city of Wilmington, containing this notification:

Wilmington, Mch. 7, 1890.

'Dear Sir: One Mark Shaw, an apprentice to us as a 'shaver,' left without cause and our notice. Please do not employ him.

'Yours, &c.,

Daniel Pierson, Jr., Supt. 'J.E.S.'

There was an understanding or 'unwritten law' subsisting among morocco manufacturers in the city of Wilmington that none of them would employ an apprentice belonging to another concern. It was shown that in two instances the plaintiff was dismissed from other morocco factories in Wilmington, where he had procured work, by reason of the claim set up by the defendants' superintendent, Mr. Pierson, that the plaintiff was the defendants' apprentice. Mr. McClary, a morocco manufacturer, testified:

'My recollection of the case is that I was called up on the telephone,-- I answered the telephone,-- and Mr. Pierson, or a voice that I supposed to be Mr. Pierson's, asked me if this man (Shaw) was working for us. I told him 'Yes.' He said they claimed him as their apprentice.'

In consequence of this claim, Mr. McClary discharged the plaintiff. Mr. Mitchell, another morocco manufacturer, testified:

'I was in F. Blumenthal & Co.'s office, and while there, in conversation with Mr. Pierson or Mr. Sparrow,-- I could not tell which,-- they told me we had Shaw working for us, and that he was an indentured apprentice of theirs; at least, they asked me if we had. I told him I did not know. Then they informed me that we had. I told them that when I went to the factory I would find out.'

Immediately after this claim was made, and because of it, Mitchell dismissed Shaw. The plaintiff testified without contradiction that on one occasion, after he left the defendants' factory and was seeking work in Wilmington, he applied to Mr Pierson for 'discharge papers,' and Mr. Pierson refused to give them to him. There was evidence to show that, in consequence of the claim thus asserted by the defendants' superintendent that the plaintiff was the defendants' superintendent that the plaintiff was the defendants' apprentice, owing them service as such, the plaintiff was unable to obtain work at his trade in Wilmington, and was forced to go elsewhere to seek employment. Cornelius Mundy, the general foreman in the Wilmington establishment, who had reported to the office that McClary had 'one of the firm's boys' (meaning Shaw), testified: 'I considered him one of the apprentice boys. * * * We expected him to finish out his term. * * * It had never been the custom to employ other foremen's apprentice boys in the leather business, and was not considered right. ' And he stated that the reason...