Bush v. Koll , 2 Colo. App. 48 ( 1892 )

Richmond, P. J.,

delivered the.opinion of the court.

By the complaint in this case it is alleged that the plaintiff entered into the defendants’ employment for the term of one year, in pursuance of a contract in writing which is in words and figures as follows:—

“ This agreement made in duplicate, this 20th day of August, A. D. 1888, between W. H. Bush, and W. S. Morse, partners under the firm name of ‘Bush & Morse,’ parties of the first part, and John Koll, of Denver, Colo., party of the second part.

“ Witnesseth, that the said parties of the first part have this day employed John'Koll as chef at the'WindsorTIotel, for the term of one year, at a monthly salary of one hundred and thirty dollars ($130).

“ The said party of the second part agrees to give his entire attention to the business for which he is employed, and to render good and satisfactory service.

“ In witness whereof, the parties have hereunto set their hands and seals this day and year above written.

“ (Signed,)

William H. Bush, (seal.)

W. S. Mobse, (seal.)

Johh Koll, (seal.)*’

On the 20th day of August, 1888, the plaintiff entered the service of the defendants under the contract, and so continued in their service until the 9th day of Februarj*-, 1889.

On the 9th day of February, 1889, defendants without cause discharged the plaintiff and have since refused to employ him for the remainder of the term mentioned in the contract.

That thereby the plaintiff has lost the wages which he would have obtained from said employment and which the defendants have wholly refused to pay, and the plaintiff has' been unable to obtain other employment, wherefore he demands judgment in the sum of $827.66 besides costs.

Defendants answer, admitting that they entered into the' contract substantially as stated in the complaint, but deny that the plaintiff faithfully discharged his duties according to the contract, or that he performed all or any of the terms or conditions of the contract on his part, or that he was ready or willing to continue in such service or to comply with all or any of the conditions of the contract; deny that on the 9th day of February, 1889, the plaintiff was ready or willing to remain in such service or to perform the conditions of the contract, or that they refused to suffer plaintiff to continue in their employ; deny that they wrongfully discharged him or that they refused to re-employ him for the term mentioned in the contract.

They further allege that at the time plaintiff quit their employment they paid him in' full for all services rendered.

Defendants by further answer and counterclaim allege that the plaintiff while so engaged in defendants’ service as chef, and about the time when dinner was being prepared for the guests of the hotel, wrongfully and fraudulently refused to go on with his work, and to discharge his duties under-said contract, and aided, abetted and counseled the other employees of defendants then engaged in the kitchen and dining room of the hotel to refuse to work for defendants. This defense sets out the number of guests in the hotel, the number of employees; and, that by reason of the acts of plaintiff they were greatly inconvenienced and were necessitated to employ other servants, wherefore they claim damages in the sum of $500.

They further allege by way of defense, upon information and belief, that the plaintiff was able to obtain further employment in the line of his vocation as chef in a hotel.

The cause was tried to a jury, and judgment rendered for the plaintiff in the sum of $418.83.

The testimony in the case seems somewhat conflicting, but we do not conceive it to be necessary to set it out fully in this opinion.

Koll testifies that he was discharged without cause ; that he was performing the services faithfully under his contract, and as he believed, giving entire satisfaction.

From the testimony of Mr. Bush it appears that his services were not satisfactory; that owing to the fact that the defendants had concluded to change the character of the cooking apparatus from a coal range to a gas range, the plaintiff became dissatisfied, and growing out of this change he so conducted himself and so run the culinary department of the hotel as to impose extravagant costs for gas upon the defendants ; that they protested, and he claimed that he was doing the best he could. They insisted that experience and examination, and their personal observation of coa-1 ranges and gas ranges in eastern hotels had thoroughly demonstrated to them that the gas arrangement was infinitely cheaper and better for hotel service.

Mr. Bush testified that up to the time we made the change of cooking apparatus the service in the kitchen was satisfactory, after we made the change everything went wrong; there was continual trouble in the kitchen, something would be underdone or overdone. I found the burners stopped up with grease. All of my men were under Koll’s direction and charge, he was the head of the department. He was chef. Up to the time of the change in the range the service was satisfactory, after that and up to the 9th of February, it was very unsatisfactory, there was a continual jar.

Mr. Morse, the other defendant, testified that after the gas range was put in there was nothing satisfactory about Koll’s service or about the kitchen, it was a continual round of trouble all the time, everything was unsatisfactory; the amount of gas used was three times the amount that the manufacturers of the range guaranteed would be necessary to do this same work.

There is considerable testimony on both sides of this controversy with reference to the capacity and utility of ranges to roast meats, cook potatoes, hard and soft boiled eggs, and in fact all of the usual articles that are enumerated upon the hotel menu or bill of fare.

But with all this I think we have nothing to do. Here is a plain, simple, unambiguous contract, susceptible of easy construction, so simple that he who can read and write ought to be able to understand.

The contract is absolute and specific; by its terms plaintiff covenanted' that his work should be satisfactory, not to himself, but to his employers. That it was not satisfactory is shown by the evidence of defendants and is corroborated by that of plaintiff. Had plaintiff’s services been eminently satisfactory to his employers, but his position unsatisfactory to himself he could have quit and they would have been remediless. To retain him in a state of revolt and while influencing and demoralizing his subordinates was impossible.

It is true that this agreement says that John Koll is employed for the term of one year at a monthly salary of $ 180. It is equally true that the other part of the agreement says that he shall give his entire time and attention to the business for which he is employed, and render satisfactory service. Getting down then to the understanding of the individuals when this contract was executed, without utilizing technicalities, I do not think there is any escaping the conclusion that the parties to the contract well understood what they were doing. The testimony shows that Koll had been in the employ of the defendants before; that he had rendered satisfactory service; that he was expected to render satisfactory service. In other words, he was to devote his entire time and attention, as well as his artistic talent, to the service of the defendants, but when that service proved unsatisfactory it was the right of either party to terminate the contract — it was mutual. If this be not true I am at a loss to understand what part the last clause of this contract plays in this drama between masters and servant. That the service was unsatisfactory is demonstrated by the testimony of Bush and Morse. Who else could testify — who else could say whether or not the service was satisfactory. Can it be argued or insisted that Koll was employed to act as chef of this hotel, to manage and control the kitchen and its employees in his own way without regard to the manifest wishes or directions of the defendants, and that when the defendants gave certain instructions concerning the methods and manner of his employment, that he could say I am the servant, but I am employed for a year and for that one year I propose to exact my salary and compel you, regardless of your wishes, to submit to my management and my dictation, to my manners and my methods in running this hotel. I care nothing for your guests or your hotel enterprise, as chef for one year I propose to remain.

It may be argued that the masters in this case were fully protected, under the general rule governing master and servant,, from any such theory as this; that when he failed to perform his services promptly as chef of that hotel, the law would protect the defendants in discharging him. I claim in answer to this that it is the right of the defendants under the contract and the law to determine when that service is satisfactory and when it commenced to be unsatisfactory.

In Zaleski v. Clark, 44 Conn. 223, Carpenter, J.; says:— “ Courts of law must allow parties to make their own contracts, and can enforce only such as they actually make. Whether the contract is wise or unwise, reasonable, or unreasonable, is ordinarily an immaterial inquiry. The simple inquiry is, what is the contract; and has the plaintiff performed his part of it?” This was a case where the plaintiff undertook to make a bust which should be satisfactory to the defendant. “ The case shows,” to use the language of the judge writing the opinion, “ that she was not satisfied with it. Hence the plaintiff has not yet fulfilled his contract. It is not enough to say that she ought to be satisfied with it, and that her dissatisfaction is unreasonable. She, and not the court, is entitled to judge of that. The contract was not to make one that she ought to be satisfied with, but to make one that she would be satisfied with.”

It seems to me that this reasoning is applicable to the ease at bar.

In Brown v. Foster, 113 Mass. 136, Devens, J., rendering the opinion of the court said: — “ There was evidence at the trial to show that the contract between the parties was an express contract, and by the terms of it the plaintiff agreed to make and deliver to the defendant upon a day certain a suit of clothes, which were to he made to the satisfaction of the defendant. The clothes were made and delivered upon the day specified, but were not to the satisfaction of the defendant, who declined to accept and promptly returned the same. * * * And even if the articles furnished by him were such that the other party ought to have been satisfied with them, it was yet in the power of the other to reject them as unsatisfactory. It is not for any one else to decide whether a refusal to accept is or is not reasonable, when the contract permits the defendant to decide himself whether the articles furnished are to his satisfaction. * * * When an express contract like that shown in the present case was proved to have been made between the parties, it was not competent to control it by evidence of usage. It may be that the very object of the express contract was to avoid the effect of such usage, and no evidence of usage can be admitted to contradict the terms of a contract, or control its legal interpretation and effect.” •

In the case of Daveny v. Shattuck, 9 Daly, 66, it was held that where “ A servant was employed upon trial for a week, with a promise that, if she suited, the employment would be continued through the summer months and until September 1st. Before the end of the week, the employer having declared that she suited, the servant said: Then, as long as I suit you, there is no fear for the summer months ; to which the employer responded affirmatively. Held, that there was not an absolute employment until September 1st, but merely a conditional one, dependent upon the servant continuing to suit the employer.”

In the case of Evans v. Bennett, 7 Wis. 351, it was held that, “ When one party agrees to work for another at a certain rate of wages per month, and either party is at liberty to put an end to the agreement at any time, the servant is entitled to recover at the stipulated rate for the time he serves, though he quits of his own motion.”

The foregoing case is certainly analogous to the case at bar with this exception, that in that one there was no written contract, but an oral agreement, and in this case there is a written agreement, an express contract whereby the individuals obligated themselves, first, the1 plaintiff to render satisfactory services ; and, second, for which services so satisfactorily rendered the defendants are bound to pay at the rate nominated in the agreement for the period of one year.

It is true that the jury were instructed by the court that if they believed from the evidence that the services of Koll were unsatisfactory to the defendants they should find for the defense. In this the trial judge took the view of the contract that I am now endeavoring to demonstrate as being the correct one. Yet notwithstanding the instructions, notwithstanding the testimony of Bush and Morse, notwithstanding the fact that Koll was discharged, notwithstanding it appears that his - services were not satisfactory to the defendants, the jury still taxed the defendants for the entire year or the term specified in the contract. Candidly, I think that there is no case that has come before my inspection and examination wherein the verdict of the jury demonstrates the fact to be that their conclusion was the result of prejudice. For, as is well said in .Zaleski v. Clark, supra, the defendant. and not the court is entitled to judge of whether or not the work is satisfactory. And in keeping with this declaration the defendants by the contract have the right of terminating the contract when the services were not satisfactory. I do not think it necessary to consider the counterclaim as, in my judgment, under the testimony it is without merit. I am clearly of the opinion that the verdict of the jury is unsupported by the evidence, and that the judgment of the court should be reversed.

Reed, J., concurred.