Citation Numbers: 143 A.D. 94, 127 N.Y.S. 1002, 1911 N.Y. App. Div. LEXIS 765
Judges: Woodward
Filed Date: 2/24/1911
Status: Precedential
Modified Date: 11/12/2024
This action, originally brought in the Municipal Court to recover a balance of $437:99, alleged to be due under the terms of an employment of the plaintiff as general manager of the defendant company, has taken on complications which, while producing a voluminous record, has not materially altered the law or the facts as they were presented to this court on appeal. (139 App. Div. 740.) On that appeal a judgment on a counterclaim in behalf of the defendant was reversed, and the proper construction of the contract of employment was laid down. The case has been retried, upon an amended answer, arid the plaintiff has judgment for the amount of his claim, the defendant appealing to this court.
It is admitted by the pleadings that the following resolution was duly adopted by the defendant, and that the plaintiff entered into the employment and continued in such employment under the terms and conditions of the resolution for a period of 238 weeks, and no question seems to be raised as to the character of the services rendered. The admission of the defendant that the resolution was “ duly adopted ” effectually disposes of one of the contentions of the defendant, that it was invalid because the vote of the plaintiff as a director was necessary to its adoption, for that which is “ duly ” done is in legal parlance done according to law, and this does not relate to form merely, but includes both form and substance. (Brownell v. Town of Greenwich, 114 N. Y. 518, 527, and author ities there cited.) The resolution reads as follows: “ On motion duly adopted Oswald Maune was appointed General Manager of Unity Press and a contract authorized to be entered into between Oswald Maune and Unity Press which should contain the following conditions: That the said Oswald Maune shall agree to enter the services of Unity Press as General Manager and promise faithfully, honestly and diligently to give and devote his time and labor exclusively to Unity Press for the space of ten years from April 19, 1905. In consideration whereof the said Unity Press shall agree to allow and pay said Oswald Maune at the rate of one hundred (100) dollars per week and payable as follows, to wit: Not more than fifty (50) dol
We held on the former appeal that the true construction of this contract or agreement was that the plaintiff was entitled to $100 per week during the entire time, and that until he had received stock of the par value of $10,000, he was entitled to $50 per week in cash and $50 per week in stock, and from that time forward $100 per week. In the course of the opinion it was suggested that no “ claim was made by either party that the contract is ambiguous, or required any oral testimony to explain its provisions ” (Maune v. Unity Press, 139 App. Div. 740, 742), and the effort was made by amendment to the pleadings, and alleging ambiguity in the agreement, to get a different construction to the resolution. Under the amended pleadings evidence was submitted tending to show that some of the defendant’s directors at the time had a different idea of the provisions of the contract than those expressed; that they thought it provided for $50 per week in cash and $50 per week in stock, until $10,000 of stock had been earned, and then $50 per week during the remainder of the term. The plaintiff, however, denied this; denied that he had any such understanding, or that the resolution was intended to express any such agreement, and the Municipal Court has found in his favor upon the facts, and it would seem that this should be conclusive in this case. An ambiguity is the effect of words where they have either no definite sense or a double sense. (2 Am. & Eng. Ency. of Law [2d ed.], 287.) Surely there is no lack of definiteness in any of the words used in the resolution quoted above, nor are there any words which can be used in any double sense. The agreement was that the plaintiff should enter the employ of the defendant for a period
It is suggested that in some way the Statute of Frauds is involved; that the plaintiff never entered into the agreement which was outlined in the resolution to which reference has been made, and that as the contract was not to be performed within one year it was necessary that a memorandum of such agreement should be made in writing, subscribed by the party to be charged. We are of the opinion that the contention is without force. Where one, acting on the faith of a promise, performs the condition upon which the promise was made,, the promise attaches to the consideration so performed, and renders the promisor liable. After the promisor has had the benefit of the consideration for which he bargained it is no defense to say that the promisee was not bound by the contract to do the act. ( White v. Baxter, 71 N. Y. 254, 260, and authorities there cited.) The plaintiff in this case, relying upon the promise of the defendant to pay him $100 per week, eátered upon the discharge of his duties and performed them in good faith, so far as the record shows, until he was discharged from the employment, as he might be under the terms of that agreement without liability probably, for it makes default in either party a condition on which the contract may be avoided. To say that he may now be defeated in an action to
The judgment appealed from should be affirmed, with costs.
Jenks, P. J., Burr, Oarr, and Rich, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.