
    Sigmund Reiss, Appellant, v. Usona Shirt Company, Respondent.
    Second Department,
    June 29, 1916.
    Contract — contract for indefinite hiring — admissibility of evidence as to circumstances leading up to signing of contract — appeal —review of exception to mere offer of evidence — practice—corporation — ultra vires contract.
    A contract providing, among other things, that the plaintiff, as compensation for his services as treasurer of the defendant, shall receive a certain sum per week for the first year following this agreement, and a certain sum per week for the next year following the agreement, and that thereafter the plaintiff and another shall each receive a certain salary per week, constitutes an indefinite luring.
    Where in an action on such a contract, under which the plaintiff claims to have been hired for a term of three years and that the defendant broke the contract, the plaintiff was invited by the court to make an offer of proof of the circumstances which led up to the signing of the agreement but the defendant’s objection to the offer of such testimony was subsequently sustained, the court on appeal may consider the exception.
    The proper procedure, however, would have been to require the plaintiff to present his evidence for ruling thereupon, subject to exceptions, for as a general rule exceptions to mere offers of evidence are not reviewed.
    The fact that the by-laws of the defendant, known to the plaintiff, provided that the treasurer should be elected each year, and that he could be removed with or without cause by the directors, did not necessarily render the contract asserted by the plaintiff ultra vires.
    
    Appeal by the plaintiff, Sigmund Reiss, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of January, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.
    
      Louis B. Williams, for the appellant.
    
      Melville II. Cane [Sol Sholes with him on the brief], for the respondent.
   Jerks, P. J.:

The plaintiff sued for damages in that, on March 3,1913, the defendant broke a written contract whereby defendant “hired this plaintiff to work for it ” for the term of three years commencing the 19th day of July, 1911, and agreed to pay him therefor the sum of $60 each and every week for the first year of said agreement, and the sum of $50 each and every week for the remainder of the period. The defendant joined issue by denials, separate defenses and counterclaim.

At trial the plaintiff relied upon a certain provision in an agreement to which he and the defendant were of the parties and of which respondent admits in its printed points notice had been given by a bill of particulars. The more pertinent part of this agreement reads: “That said Sigmund Reiss as compensation for his services as Treasurer of said company shall receive sixty dollars ($60) a week for the first year following this agreement, namely from July 31, 1911, to July 31, 1912, and fifty dollars ($50) a week for the next year following this agreement, namely from July 31, 1912, to July 31, 1913. That thereafter said Sylvan Levy and Sigmund Reiss shall each receive the salary of fifty dollars ($50) a week.” The case was tried upon this agreement without objection. Certain writings were read in evidence, and certain admissions were made, but no oral proof was given. The court dismissed the plaintiff at the close of his case under exception, and denied under exception his request to go to the jury upon the question whether there was a hiring for a definite period of two years. At the time of dismissal it appeared that plaintiff, one of the original incorporators of the defendant and its vice-president, had resigned that office and had been elected treasurer on July 19, 1911, and that, in accord with the provision of the by-laws, he had held over in such office beyond the prescribed period of one year, until March 3, 1913, when, despite his protest, he was elected vice-president and removed from the office of treasurer, apparently pursuant to a provision of the by-laws, and that he had not received any money from the defendant during the time that intervened, July 19, 1911, and March 3, 1913.

The learned counsel for the defendant contended upon the motions at trial, and now contends, that the agreement was one of indefinite hiring under the rule of Martin v. Insurance Co. (148 N. Y. 117) and of Watson v. Gugino (204 id. 540). With this contention I agree. But I think that the plaintiff should have been permitted, if he could do so, to offer evidence to establish a mutual understanding of the parties to the agreement, that it was for a definite term of two years. The rule of Martin’s and Watson’s Cases (supra) was adopted from that stated- by Mr. Wood in his Master and Servant (2d ed. § 136). In the course of his statement that author says: “It is competent for either party to show what the mutual understanding of the parties was in reference to the matter; but unless their understanding was mutual that the service was to extend for a certain fixed and definite period, it is an indefinite hiring and is determinable at the will of either party.” (See, too, Cuppy v. Stollwerck Brothers, 216 N. Y. 591, 594; Gillet v. Bank of America, 160 id. 555; Maloney v. Iroquois Brewing Co., 173 id. 310.)

It is true that the plaintiff did not present the evidence for a ruling thereon, but at the outset the court inquired whether he wished “to make an offer of proof of the circumstances which led up to the signing of this agreement,” and when the plaintiff stated that such was his desire, the court and counsel entered into a long discussion upon the admissibility of such proof, which discussion was terminated by the statement of the court, “ I take it now that counsel for the plaintiff has rested with the exception of a decision on his offer of proof, and now he offers to make certain proof. If I decide in his favor, we will go on. If I decide against counsel for the plaintiff, he takes an exception and then rests.” And thereafter the court “sustains the objection of the defendant to permitting the plaintiff to offer oral testimony to explain the conditions surrounding the entering into or signing of this contract.” I cannot find the record of such objection. The proper procedure would have been requirement of the plaintiff to present his evidence for rulings thereupon, subject to exception, for as a general rule exceptions to mere offers of evidence are not reviewed. But, as it appears that the offer was invited by the court and then considered by it, that the offer was made in good faith to facilitate the disposition of the case, and that there was no objection by the opposite party to this course, I think that we may consider the exception under the authority of Gerard v. Cowperthwait (2 Misc. Rep. 371, 373; affd., 143 N. Y. 637).

If the plaintiff could have adduced the proof then he could have applied for an amendment of his pleading to conform to it, in that he sought to recover for breach of a written agreement for a term of two years, which overlapped the date of his dismissal. The discussion in the record indicates that such was the intention of the plaintiff.

The fact that the by-laws of the defendant, as known to the plaintiff, provided that the treasurer should be elected each year and that he could be removed with or without cause by the directors, did not necessarily render such an agreement as was asserted by the plaintiff ultra vires the corporation. (Douglass v. M. Ins. Co., 118 N. Y. 484, citing Martino v. Commerce Fire Ins. Co., 15 J. & S. 520; Cuppy v. Stollwerck Brothers, supra.)

I advise that the judgment be reversed and that a new trial be granted, costs to abide the event, upon the ground that the court should have permitted the plaintiff to offer proof as to the mutual understanding of the parties that the agreement was.for a definite term.

Carr, Stapleton, Mills and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event, upon the ground that the court should have permitted the plaintiff to offer proof as to the mutual understanding of the parties that the agreement was for a definite term.  