
    ROBERT McGRATH, Plaintiff and Respondent, v. JAMES W. BELL, Defendant and Appellant.
    I. Master and servant.
    
    1. Discharge. What not sufficient justification of.
    A. Sending notices to master’s customers after the discharge.
    2. Waiter of causes of complaint, what is sufficient of to submit to the-jury.
    A. Evidence of the retention of- the servant in the master’s employ for eleven or twelve days after the master’s knowledge of the existence of the causes.
    H. Trial. Evidence, when exclusion of not treated as error.
    1. When, at the time of its offer it, without explanation, seems quite immaterial, unless it appears plainly that the court was made acquainted with the ground on which it was offered, and which might in law have justified its reception.
    Before Monell, McCunn, and Freedman, JJ.
    
      Decided April 1, 1871.
    Appeal from judgment.
    The plaintiff, in his complaint, claimed to recover for salary due him on a written contract, whereby defendant had employed him as cutter in defendant’s tailoring establishment for the period of two years, at the rate of thirty-five dollars per week, and alleging, among other things, that plaintiff had been discharged without cause, although he was ready and willing to perform his duty under the contract.
    The defendant, by answer, admitted the contract and an indebtedness of about thirty-five dollars, but denied the discharge without cause, and set up several causes for the discharge, among others, a violation of orders and conduct derogatory to the interest of the defendant, all of which causes were pleaded in bar of the action.
    
      Cotterill Brothers, attorneys for appellant.
    
      Charles S. Spencer, attorney for respondent.
   By the Court.—Freedman, J.

Upon the trial defendant attempted to justify plaintiff’s discharge, upon two grounds, namely, first, that plaintiff had been guilty of violations of orders, and secondly, that plaintiff had acted in a manner derogatory to' the interests of his employer.

The disobedience of orders consisted in taking down on paper a list of the names of the patterns, which plaintiff said he kept as a memorandum, so that, if any of defendant’s customers gave a second order, he, plaintiff, as cutter, could know he had the pattern. lío order to refrain from doing so had ever been communicated to plaintiff by the employer himself. This question was fully and fairly submitted by the court to the jury, who found, by their verdict, that no such disobedience took place. There is no exception to the charge of the court upon this branch of the case. But the appellant insists that the court erred in refusing to allow the defendant to prove that plaintiff, after he had been discharged, sent notices to customers whose names he had drawn off the patterns. This evidence, being wholly irrelevant to the issue, was properly excluded.

The evidence relied on to establish that plaintiff had acted in a manner derogatory to the interests of his employer, showed, that on April 24, 1868, plaintiff committed, in defendant’s store, during defendant's absence therefrom, an assault and battery upon Craney, another employee of defendant. It also appeared that defendant retained plaintiff in his employ for eleven or twelve days after knowledge of the occurrence, and until the determination of a criminal prosecution instituted against plaintiff by Craney. The learned judge below, therefore, very properly submitted to the jury the question, whether under all the circumstances the defendant should or should not be -considered as having waived the previous transgression on April 24, provided they found, that there was a transgression on that day, of the duty which plaintiff owed to defendant. The jury had previously been instructed that the fact of plaintiff’s conviction by the magistrate (of which there was no proof), had no weight and was not sufficient per se to justify plaintiff’s dismissal, but that the dismissal must be justified out of the occurrences out of which the conviction arose. Ho objection was made to these latter remarks, and the defendant contented himself with taking a general exception to that portion of the charge which related to the question of waiver, but in the points submitted by the appellant the same has been waived.

The only remaining question, therefore, is whether the court below erred in rejecting the offer made by defendant to prove by the witness Craney, “thatthe said witness made a charge against the plaintiff before a police magistrate, which was tried, and that after the decision of the magistrate, Mr. Bell discharged the plaintiff,” to which rejection defendant took an exception. Now, if the defendant had, prior to such offer, testified, as his counsel subsequently merely argued, that he, defendant, was unable at the time to determine upon the conflicting statements of fellow workmen as to whether Craney or plaintiff was the real aggressor or otherwise at fault, and for that reason determined to and did await the decision of the magistrate before discharging either, the proposed evidence, If offered to sustain such theory, would have been admissible upon the question of waiver already referred to, and its retion, under such circumstances, would probably have been error. But it was not offered for any such purpose. The very first witness called on defendant’s side was Craney, and after he had given his version of the assault, defendant’s counsel offered to prove by Ms testimony, that a criminal charge had been made, that a trial had been had, and that plaintiff was discharged by defendant after the rendition of the magistrate’s decision upon such trial. No foundation, therefore, had been laid for the introduction of such evidence, even if otherwise competent, nor was it pointed out to the court in what aspect of the case it might become material. When subsequently the defendant went upon the stand, as a witness on his own behalf, the offer was not only not repeated, but the defendant wholly failed to testify to any fact or circumstance which might have had a tendency to render the said rejected evidence material. No error was consequently committed by its exclusion at the time and under the circumstances referred to, for it is a well settled rule, under the English practice as well as our own, that an offer of evidence must be made in such terms as to leave no room for doubt as to its competency and materiality under a proper definition of the law applicable thereto, and if not so made, a. general exception to its exclusion will not be available unless it appears plainly that the court understood the ground which in law might have justified its reception.

The appeal in this case being from the judgment merely, the only questions open to review are questions of law arising upon the exceptions presented by appel-. lant’s points, and such exceptions having been found to be untenable, the judgment appealed from must be affirmed, with costs.  