
    George E. Brightson, Respondent, v. The H. B. Claflin Company, Appellant.
    
      Master and servant — contract for five years, shortly before the expiration of which period the master expresses a hope that their relations would continue for many years—a contract from year to year presumed from continued service—pleading amended to conform to facts — the bringing of a suit held not to justify a discharge.
    
    In an action brought to recover damages arising out of the plaintiff’s wrongful discharge on August 21, 1900, from the defendant’s employ, the complaint alleged the making of a contract under which the employment was to continue for a period of five years from January 1, 1898.
    Upon the trial it appeared that the plaintiff had been employed by the defendant under a contract for a period of five years expiring January 1, 1898; that in 1897 the plaintiff interviewed the president of the defendant, told him that the contract was about to expire and requested that he be seasonably notified if there was to be any modification thereof; that in response to this the president replied that he hoped the plaintiff and himself would continue their business relations for many years to come; that the plaintiff continued in the employ of the defendant until August, 1900, when he was discharged without cause.
    
      Held, that the evidence did not establish a renewal of the previous contract for a further term of five years, but that it was sufficient to support a finding that the plaintiff had been employed from year to year under the terms of the previous contract;
    That in order to sustain a judgment rendered in favor of the plaintiff upon the latter theory, the Appellate Division would deem the pleadings amended in accordance with the proof;
    That the fact that the plaintiff, during the continuance of his employment, acting in the honest belief that the defendant had unlawfully interfered with his rights under the contract of employment by placing a subordinate in charge of a portion of the department managed by him, brought an action against the defendant to obtain an injunction restraining the alleged unlawful interference, did not amount to insubordination justifying his discharge.
    
      Appeal by the defendant, The EL B. Olaflin Company, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the bffice of the clerk of the county of Nassau on the 2d day of October, 1902, Upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of October, 1902, denying the defendant’s motion for a new trial made' upon the minutes.
    
      ■ John L. Willde [Moses Ely with him on the brief], for the appellant.
    
      Sidney U. Stuart,. for the respondent.
   Woodward, J.:

The plaintiff, who had been in the employ of the defendant and its predecessor for a period of fifteen years or more, brought this action to recover $50,000 for the breach of an alleged contract of employment for a term of five years from the 1st day of January, 1898, he having been discharged on the 21st day of August, 1900, without, as the plaintiff claims, and the jury has found, any just cause or provocation. The defendant denied the existence of the contract as alleged in the complaint, and justified the discharge of the plaintiff upon the grounds that his employment at the time was at the ‘pleasure of the employer, and that the conduct of the plaintiff justified his discharge, and these were the questions litigated Upon, the trial. The jury has found in favor of the plaintiff in a verdict for $5,000 damages, and from the judgment entered the defendant appeals to this court.

It appeared upon the trial that the plaintiff, in June or July, 1885, entered into a written contract with the firm of H. B. Olaflin & Co., by the terms of which he was permitted to draw $500 per month. With ten per cent additional at the end of the year upon the net profits of the notion department, which was given into his charge, subject to the general directions of the firm. In 1888‘this contract was changed, so that the plaintiff drew in addition to. his $500 per month twelve and one-half per cent of the net profits. He continued under this contract until the 30th of November, 1892, when the present defendant ■ corporation became the successor of the firm of H. B. Olaflin & Co., and the plaintiff’s contract was renewed for a period of five years from the 1st day of January, 1893, expiring by its terms on the 1st day of January, 1898. In the latter part of - the year 1897 the plaintiff, knowing that his contract was about to expire, went to Mr. Claflin, the president of the corporation, and said to him that as his contract would expire the following year, he desired, if there was to be any change or any -material modification of the contract, that he be notified seasonably of the fact. To this Mr. Claflin is said to have replied that he and plaintiff were of about the same age; that they had been in business together for some years, and that he hoped that this would continue for years to come, or words to that effect, and it was upon this basis that the plaintiff claimed a renewal of the contract for a period of five years. The learned trial court held,, and properly, we believe, that the evidence did not support this contention, but permitted a finding that the plaintiff was employed from year to year under the terms of the old contract, and that the plaintiff having served through 1898, 1899 and a portion of 1900, must be deemed to have been engaged for the full year, and to have been entitled to recover not only the salary which he had not drawn, but twelve and one-half per cent upon the probable net profits of the business of his department if he had been permitted to continue the employment, this being determinable only at the close of the year under the terms and practices of the original contract. While this is not in exact accord with the pleadings, we are of opinion that the evidence fully supported this view of the question, and that the pleadings may be deemed to have been amended in accordance with the facts proved for the purposes of this appeal under the provisions of section 723 of the Code of Civil Procedure. If the pleadings had alleged a contract for one year there would have been no doubt, under the circumstances, that the law would infer from the facts that the defendant had acquiesced in the renewal of the old contract for that period (Dean v. Woodward, 52 Hun, 421; Ball v. Stover, 82 id. 460), and we see no reason why the evidence does not support this conclusion and justify the court in assuming that the pleadings have been amended to meet the proof.

The more serious question is presented by the. evidence upon the question of the defendant’s justification for the discharge of the plaintiff. The evidence, it may be assumed, for it was not seriously questioned, established that in the inventory for the year 1899 certain goods, aggregating in value about $40,000, and which had been credited to the department for sales made, were included in the list •of goods on hand, so that .the department had a credit of $40,000 to which it was not entitled and which resulted in commissions to the plaintiff of approximately $5,000 in excess of what would have resulted had not this error in the calculation been made. This condition. of affairs was brought to light by an inventory of the book stock in the notion department during the absence of the plaintiff, and after the latter had been relieved of the charge of this stock, owing to some friction over his failure to "keep the stock down to a point where it was satisfactory to his employer. When his attention was called to this discrepancy in the inventory he promised to look into the matter and report back, but it was not disputed that he had never done so, at least in so far as his making a report was concerned, but it was claimed upon the trial and perhaps with some support in the evidence, that this was due to the obstacles thrown in his way by the defendant’s employee, one Connell, who had been placed in charge of the book stock before the discharge of the plaintiff,. and who was in a ■ measure at least hostile to -the plaintiff. It appears that the plaintiff, thus superseded in one of the important branches of his department, brought an action in the Supreme Court asking for an injunction restraining the defendant from interfering with his rights under the contract of employment. Immediately' after the service of these papers the plaintiff was dismissed, no reason being assigned other than what might be inferred from the facts as thus pointed out. Subsequently this action was withdrawn, plaintiff paying the costs, and he wrote a letter to the head of the corporation apologizing for his conduct in this respect and promising to be useful to the corporation on the outside, although no longer in its employ. •

It is important, in considering what inferences'.the jury might properly draw, to note the fact that in the matter of the inventory, if the error was honestly made and the goods were subsequently delivered to the purchasers, the error would correct itself in the inventory of the following year. That is, the $40,000 worth of goods would not be in stock and the inventory would show that much less of sales for the year 1900 than would be the case if the inventory for the previous year had been correct, and as there was nothing in the evidence to show that the plaintiff had any reason to expect his discharge at the end of 1899, we must assume either that he intended to continue the deceit in the coming inventory, or that the error was one of inadvertence rather than of design, and the law, in the presence of such a condition, always assumes honesty. When it is remembered that the stock of goods under the charge of the plaintiff aggregated over $1,000,000; that it was a miscellaneous stock, requiring the assistance of over 200 persons in its management ; that the inventory was taken by subordinates, and that such an error as was found might easily have happened without either negligence of a culpable character or design on the part of the plaintiff, we think the court would not have been justified, as a matter of law, in holding that this mistake of $10,000 in the inventory, which did not promise to be of any permanent advantage to the plaintiff, unless we assume that he intended to continue the error in the future, was sufficient to constitute a breach of the contract of employment. It seems equally clear to us that the mere fact that the plaintiff brought an action against the defendant to prevent an interference with his rights under the contract, which depended for its value in some measure upon his personal efforts, did not amount to insubordination which would justify his discharge. The action might not have been well advised; the plaintiff might better, perhaps, have taken other steps to vindicate himself and to preserve his rights ;-but it is not for this court to say that one who invokes its aid is guilty of any wrong against his employer unless it appears that the action was taken for the purpose of unnecessarily embarrassing or annoying such employer, and we think this did not appear in the case at bar. The plaintiff had been in his position for fifteen years, and, so far as the evidence" goes, he had never been accused of any irregularities, the only suggestion of fault-finding being in reference to the continual growth of the stock under his charge, but even this appears to have been accepted without any great amount of friction, -and was acquiesced in by the continued employment of the plaintiff after his contract had expired. He had rights under his contract; he was interested in the profits to be earned by the department, and when he found himself being undermined by one whom he had promoted to the position of assistant manager, and discovered .a disposition on the part of those who had trusted him to question his integrity or his capacity, and perhaps to acquiesce in the hostility of this man who had thus been put into control of one of the stocks of his department, it is not to be wondered at that he abandoned his effort to investigate and resorted to the courts in the hope of bringing about ■ an adjustment of his affairs. If he acted honestly in the matter, and for the purpose of protecting his rights, however foolishly he may have acted, he is not to be deprived of his rights, and we are of opinion that the question presented by the evidence was for the jury to determine, and we are not disposed to interfere with the result.

"We think no reversible error is presented by the record in this case; the plaintiff as a witness had a right to state the gross amount of the sales of his department in a given year, where he had received his compensation upon the basis of such sales, and the objection that the books were the best evidence of this fact is not supported by the facts. The witness was testifying as to his knowledge of facts, and if he refreshed his memory from figures upon a slip of paper, no objection was made to this. But the question to which special objection was made, and to which attention is called at folios 105 and 106, was not answered, although the witness made some response to the effect that he knew about the matters. He was asked: “ What was the amount of the gross sales of these six months of 1900 ? ” Defendant objected on the ground that the best evidence-of this fact was the books. The objection was overruled, and the-witness replied : “ I know and I have them computed, made extracts from the books. I have a memorandum kept by my bookkeeper for me. I have computed it. I made a computation of the gross sales from the books.” But he nowhere" tells what those gross sales were until, upon cross-examination, he gives a statement of the amount in response to the defendant’s question, and the saíne appears in evidence without exception.

The judgment and order appealed from should be affirmed, with" costs.

Goodrich, P. J., Bartlett, Jerks and Hooker, JJ., concurred.

Judgment and order affirmed, with costs.  