Milage v. Woodward

• Decision Date: 23 October 1906
• Citation: 78 N.E. 873,186 N.Y. 252
• Parties: MILAGE v. WOODWARD.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 252

78 N.E. 873

MILAGE

v.WOODWARD.

Court of Appeals of New York.

Oct. 23, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by George Milage against Charles E. Woodward. From a judgment of the Appellate Division (94 N. Y. Supp. 1155), reversing an order granting a new trial unless the amount of recovery was reduced, and adjudging judgment for plaintiff for a certain sum, defendant appeals. Affirmed.

Richard E. White, for appellant.

W. A. Matson, for respondent.

EDWARD T. BARTLETT, J.

It is to be remarked at the outset that this is not an action on contract for wages, or for a specified sum due under a written agreement. The plaintiff seeks in this action to recover damages for breach of contract. The complaint specifically alleges ‘that by reason of the wrongful and unlawful discharge of plaintiff by defendant the plaintiff sustained damage in the sum of $240, no part of which has been paid.’ ‘A servant wrongfully discharged has but two remedies growing out of the wrongful act: (1) He may treat the contract of hiring as continuing, though broken by the master, and may recover damages for the breach. (2) He may rescind the contract, in which case he could sue on a quantum meruit for services actually rendered. These remedies are independent of and additional to his right to sue for wages for sums actually earned and due by the terms of the contract.’ Howard v. Daly, 61 N. Y. 362, at bottom of page 369 and top of page 370, 19 Am. Rep. 285. The plaintiff, by bringing this action, has elected to avail himself of the first remedy above stated. The law applicable to the present case is very thoroughly reviewed in Howard v. Daly, supra; Commissioner Dwight writing a learned opinion. In Moody v. Leverich, 4 Daly, 401, the late Chief Justice Charles P. Daly wrote an opinion, reviewing the authorities, in a case where it was held that a servant wrongfully dismissed by his master is restricted either to an action to recover for the services actually rendered or to a general action for damages for the breach of the contract, in which he may recover any amount due for services and also compensation for damages sustained by the further breach of the contract in wrongfully dismissing him. In Heim v. Wolf, 1 E. D. Smith, 73, Judge Woodruff thus lays down the general rule: ‘Where an employer discharges a person from his employ, he may wait until his wages become due and then recover them; but that rule is to to taken with restrictions. He recovers, not for services rendered, but damages for breaking the contract by discharging him before the termination of his agreement; that is, for refusing to employ and pay him according to the contract. If it appears that he was idle and could not obtain other employment, his damages would be the whole compensation agreed upon; but, if he obtains employment, then he is entitled only to a partial recovery.’

It appears that the plaintiff was a resident of the city of Rochester and the owner of a canal boat and three horses; the crew consisting of himself, as captain, and a driver. The plaintiff, as captain of the boat, supervised the work in which the outfit was employed. On the 27th of July, 1903, the plaintiff and defendant entered into a contract in writing, whereby it was agreed in substance that the plaintiff was to furnish the canal boat, with its crew, three horses, and all necessary equipment, to the defendant for the purpose of boating sand from the property of the defendant near Cartersville, on the Erie Canal, to the city of Rochester. The defendant agreed to pay for the use of said boat, crew, and equipment $60 a week of six days, or, if work was performed seven days per week, the sum of $63. The term of the contract was fixed at four weeks, beginning July 28, 1903. The defendant in his answer set up that there was an additional agreement, which on the trial was stated to be oral, to the effect that it was agreed, on the part of the plaintiff, that the loads of sand to be placed upon the boat should sink her in the water to the six-foot line, and that the boat should be so loaded in order to constitute a boat load. It is sufficient to say as to the alleged oral agreement that the defendant testified that during a conversation prior to the signing of the written contract he said to the plaintiff that he supposed he could load to the six-foot line, and the latter replied, ‘You can put on what you have a mind to, but my advice is not to put more in on one day than you can take off in the next.’ The defendant reiterated in his testimony that the conversation took place during the negotiations just prior to the signing of the written instrument. It therefore follows, under the familiar rule of law, that all previous negotiations are merged in the written instrument, and that the writing between the parties represents the entire contract. The course of the trial renders this point of little importance, as the attention of the learned trial judge was not called to the same, and he submitted the question to the jury as to whether the oral contract was made in addition to the written one, and, the verdict being for the plaintiff, it must be assumed that the jury found that no such contract was made, or, if made, it had not been violated, for reasons that will presently appear.

The plaintiff, in pursuance of the contract, was engaged for a period of eight days in drawing sand for the defendant from Cartersville to the city of Rochester, some three loads in all, when he received a letter from the defendant, dated August 5, 1903, reading as follows: ‘As you have refused to draw the amount of sand to a load that I am entitled to, and in addition to that have signified your willingness for me to get some one else to do my boating, I have decided to terminate the contract entered into with you. You can get the $80 due you by calling at my office.’

On August 8th the counsel for plaintiff addressed a communication to the defendant, containing, among other things, the following: ‘The boat and crew are at your command, as you know, during the time called for in the contract, and at the expiration of that time we will ask you to pay the amount of the contract in behalf of Mr. Milage [plaintiff]. If, in the meantime, you have any proposition of compromise, so that the boat can be released and go to...