Schwartzreich v. Bauman-Basch, Inc
| Decision Date | 10 May 1921 |
| Citation | 231 N.Y. 196,131 N.E. 887 |
| Parties | SCHWARTZREICH v. BAUMAN-BASCH, Inc. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Louis Schwartzreich against Bauman-Basch, Incorporated. After judgment for plaintiff entered upon verdict of a jury, the trial court on motion set aside the verdict and judgment and dismissed the complaint, and upon appeal to the Appellate Term this action was reversed and verdict and judgment in plaintiff's favor reinstated; leave being granted to take the case to the Appellate Division. The Appellate Division (188 App. Div. 960,176 N. Y. Supp. 921) affirmed the judgment of the Appellate Term, one of the judges dissenting, and certified by its order that a question of law was involved to be reviewed by the Court of Appeals.
Judgments of Appellate Division and Appellate Term affirmed.
Chase, J., dissenting.Appeal from Supreme Court, Appellate Division, First Department.
Louis Boehm and Samuel Zeiger, both of New York City (Louis Boehm, of New York City, of counsel), for appellant.
I. Gainsburg, of New York City (I. Maurice Wormser, of New York City, of counsel), for respondent.
On the 31st day of August, 1917, the plaintiff entered into the following employment agreement with the defendant:
‘Bauman-Basch, Inc.
(New York
‘Agreement entered into this 31st day of August, 1917, by and between Bauman-Basch, Inc., a domestic corporation, party of the first part, and Louis Schwartzreich, of the borough of Bronx, city of New York, party of the second part, witnesseth:
‘The party of the first part does hereby employ the party of the second part, and the party of the second part agrees to enter the services of the party of the first part as a designer of coats and wraps.
‘The party of the second part shall devote his entire time and attention to the business of the party of the first part, and shall use his best energies and endeavors in the furtherance of its business.
‘In witness whereof, the party of the first part has caused its seal to be affixed hereto and these presents to be signed, and the party of the second part has hereunto set his hand and seal the day and year first above written.
‘Bauman-Basch, Inc.,
‘S. Bauman.
‘Louis Schwartzreich.
‘In the presence of.’
In October the plaintiff was offered more money by another concern. Mr. Bauman, an officer of the Bauman-Basch, Inc., says that in that month he heard that the plaintiff was going to leave and thereupon had with him the following conversation:
‘A. I called him in the office, and I asked him, ‘Is that true that you want to leave us?’ and he said ‘Yes,’ and I said, ‘Mr. Schwartzreich, how can you do that; you are under contract with us?’ He said, ‘Somebody offered me more money.’ * * * I said, ‘How much do they offer you?’ He said, ‘They offered him $115 a week.’ * * * I said, ‘I cannot get a designer now, and, in view of the fact that I have to send my sample line out on the road, I will give you a hundred dollars a week rather than to let you go.’ He said, ‘If you will give me $100, I will stay.’'
Thereupon Mr. Bauman dictated to his stenographer a new contract, dated October 17, 1917, in the exact words of the first contract and running for the same period, the salary being $100 a week, which contract was duly executed by the parties and witnessed. Duplicate originals were kept by the plaintiff and defendant.
Simultaneously with the signing of this new contract the plaintiff's copy of the old contract was either given to or left with Mr. Bauman. He testifies that the plaintiff gave him the paper but that he did not take it from him. The signatures to the old contract plaintiff tore off at the time according to Mr. Bauman.
The plaintiff's version as to the execution of the new contract is as follows:
‘A. I told Mr. Bauman that I have an offer from Scheer & Mayer of $110 a week, and I said to him: ‘Do you advise me as a friendly matter-will you advise me as a friendly matter what to do; you see I have a contract with you, and I should not accept the offer of $110 a week, and I ask you, as a matter of friendship, do you advise me to take it or not.’ At the minute he did not say anything, but the day afterwards he came to me in and he said, ‘I will give you $100 a week, and I want you to stay with me.’ I said: ‘All right, I will accept it; it is very nice of you that you do that, and I appreciate it very much.’'
The plaintiff says that on the 17th of October, when the new contract was signed, he gave his copy of the old contract back to Mr. Bauman, who said: ‘You do not want this contract any more because the new one takes its place.’
The plaintiff remained in the defendant's employ until the following December, when he was discharged. He brought this action under the contract of October 17th for his damages.
The defense, insisted upon through all the courts, is that there was no consideration for the new contract as the plaintiff was already bound under his agreement of August 31, 1917, to do the same work for the same period at $90 a week.
The trial justice submitted to the jury the question whether there was a cancellation of the old contract and charged as follows:
‘If you find that the $90 contract was prior to or at the time of the execution of the $100 contract canceled and revoked by the parties by their mutual consent, then it is your duty to find that there was a consideration for the making of the contract in suit, viz., the $100 contract, and, in that event, the plaintiff would be entitled to your verdict for such damages as you may find resulted proximately, naturally, and necessarily in consequence of the plaintiff's discharge prior to the termination of the contract period of which I shall speak later on.’
Defendant's counsel thereupon excepted to that portion of the charge in which the court permitted the jury to find that the prior contract may have been canceled simultaneously with the execution of the other agreement. Again the court said:
‘The test question is whether by word or by act, either prior to or at the time of the signing of the $100 contract, these parties mutually agreed that the old contract from that instant should be null and void.’
The jury having rendered a verdict for the plaintiff, the trial justice set it aside and dismissed the complaint on the ground that there was not sufficient evidence that the first contract was canceled to warrant the jury's findings.
[1] The above quotations from the record show that a question of fact was presented and that the evidence most favorable for the plaintiff would sustain a finding that the first contract was destroyed, canceled, or abrogated by the consent of both parties.
The Appellate Term was right in reversing this ruling. Instead of granting a new trial, however, it reinstated the verdict of the jury and the judgment for the plaintiff. The question remains, therefore, whether the charge of the court, as above given, was a correct statement of the law or whether on all the evidence in the plaintiff's favor a cause of action was made out.
Can a contract of employment be set aside or terminated by the parties to it and a new one made or substituted in its place? If so, is it competent to end the one and make the other at the same time?
[2][3][4] It has been repeatedly held that a promise made to induce a party to do that which he is already bound by contract to perform is without consideration. But the cases in this state, while enforcing this rule, also recognize that a contract may be canceled by mutual consent and a new one made. Thus Vanderbilt v. Schreyer, 91 N. Y. 392, 402, held that it was no consideration for a guaranty that a party promise to do only that which he was before legally bound to perform. This court stated, however:
.’
In Cosgray v. New England Piano Co., 10 App. Div. 351, 353,41 N. Y. Supp. 886, 888, it was decided that where the plaintiff had bound himself to work for a year at $30 a week, there was no consideration for a promise thereafter made by the defendant that he should, notwithstanding, receive $1,800 a year. Here it will be noticed there was no termination of the first agreement which gave occasion for Bartlett, J.,...
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...In addition, an original contract may be discharged by mutual consent and the making of a new contact. See Schwartzreich v. Bauman-Basch , 231 N.Y. 196, 204, 131 N.E. 887 (1921). Under this scenario – on which APE relies – "[f]undamental to the establishment of a contract modification is pr......
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