Pollak v. Danbury Mfg. Co.

• Decision Date: 23 December 1925
• Citation: 131 A. 426,103 Conn. 553
• Court: Connecticut Supreme Court
• Parties: POLLAK v. DANBURY MFG. CO. (TWO CASES).

131 A. 426

103 Conn. 553

POLLAK v. DANBURY MFG. CO. (TWO CASES).

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Court of Common Pleas, Fairfield County; Frederick W Huxford, Judge.

Separate actions by Felix G. Pollak and Margaret G. Pollak against the Danbury Manufacturing Company for breach of contract to employ plaintiffs. Verdict and judgment for plaintiff in each action, and the defendant appeals. Error, judgment set aside and new trial ordered.

Martin J. Cunningham, of Danbury, for appellant.

Thomas A. Keating, of Danbury, for appellee.

MALTBIE, J.

These two cases were tried together and present to this court precisely the same legal situation. The defendant is engaged in the manufacture of underwear, with factories at Danbury and Bethel, Conn., and Brewster and Millerton, N.Y. August 21, 1923, each of the plaintiff entered into a contract of employment with it, by the terms of which each was to work for the company in the same capacity as at that time employed, and to perform such additional services as might be required; such employment to continue until December 31, 1923. Felix G. Pollak was at that time general manager of the factories of the company, and Margaret G. Pollak was superintendent of the operating department of the factory at Danbury. In each case the contract required that the plaintiff--

" shall devote his entire time and attention and his best energies and abilities to the performance of such duties as may be assigned to him by the company, and shall serve the company faithfully and diligently and use his (or her) utmost endeavors to promote the interest of the company, and shall at all times be subject to the direction and control of the company, and shall do such work and perform such services at such times and places and of such a nature as the company may direct in connection with its business."

On or about October 15, 1923, the defendant discharged both of the plaintiffs, and these actions were brought by them to recover damages for that discharge. The defendant admitted that it discharged them, but alleged that it did so because of their failure to perform the contractual obligation quoted above, and the main issue in the case was whether they had so failed in their duties as to justify the defendant in taking that action.

Upon this issue, the trial court charged the jury as follows:

" Now, performance, gentlemen, means only a substantial performance, and it is for you to say whether in this case or cases there was this substantial performance. For instance, a number of things were suggested upon which the claim was based of nonperformance, and, if you should find some or not all of those things as facts, then it will be for you to say whether that constituted a substantial performance on the part of the plaintiffs of their contract. If you find as a fact they did substantially comply with the terms of their contracts, while they may not have done everything, still they substantially complied with the terms of their contracts, then you would be justified in bringing in a verdict in their favor."

Later, in further discussing the issue, the court stated:

" But a substantial compliance with the terms of the contract is all that is required."

Toward the end of its instructions to the jury, however, it read certain of the defendant's requests to charge, among them these:

" The plaintiff was obliged to obey all lawful and reasonable commands of the defendant, * * * and a refusal or neglect upon the part of the plaintiff to obey any such command, given by the defendant through its authorized officer or agent, amounts to insubordination, is inconsistent with his duties to the defendant, and is a sufficient ground for his discharge. * * * If you find that the plaintiff * * * neglected to execute said orders, or unreasonably postponed the execution of such orders, then the defendant was justified and had the right to discharge the plaintiff."

Finally, at the very end of its charge, the trial court instructed the jury, that, if the plaintiffs had " fully performed or substantially performed" the stipulations of their contracts, they were entitled to recover, but, if they had " failed to perform or substantially perform their express stipulations, and you should find that constituted a breach on their part of those stipulations and their agreement," verdicts should be rendered for the defendant.

Passing for the moment the question of the correctness in law of the instruction first given, the charge is open to two serious criticisms, The first of these is that, even if we should assume the doctrine of substantial performance to be applicable to this case, nowhere is the jury given any explanation of the meaning of the words " substantial performance," no practical criterion by which the conduct of the plaintiffs could be tested, and, in particular, no reference is made to the fact that the doctrine of substantial performance can be invoked only where the defects in performance were not willful or voluntary. Daly & Sons v. New Haven Hotel Co., 91 Conn. 280, 290, 99 A. 853; Fagerholm v. Nielson, 93 Conn. 380, 386, 106 A. 333. The other is...