
    Hannah T. Hart, App’lt, v. James B. Ryer et al., Impl’d, Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 4, 1892.)
    
    1. Reference—Dismissal of complaint.
    Where the record does not disclose that either of the parties requested the referee to make findings, the judgment entered on his report dismissing the complaint at the close of plaintiff’s case is to he reviewed as on a non-suit for insufficiency of proof, and not as on a determination of the merits of the action.
    2. Master and Servant—Services—Breach of contract.
    In an action for services the defense was a wrongful abandonment of defendants’ service. ■ Plaintiff’s testimony was to the effect .that the cono tract of employment did not state where the services were to be performed, but that defendants’ place of business was in New York city and plaintiff resided there; that after six months defendants ordered him to go to work in Chicage; that he went there, but that it cost a large sum over his salary to conduct the business there; that defendants did not furnish said amount and plaintiff left Chicago and defendants refused to employ him elsewhere. No other evidence was given. Held, that it was error for the referee to decide the case as involving only questions of law and dismiss the complaint.
    Appeal from judgment on the report of a referee, which dismissed the complaint at the close of the plaintiff’s case. Action to recover for services rendered "by plaintiff’s assignor pursuant to contract with defendants.
    
      Charles P. Paly, for app’lt; F. A. Burnham, for resp’ts.
   Pryor, J.

Since the record does not disclose that either pellant or respondents requested the referee to make findings, the judgment is to be reviewed as on a non-suit for insufficiency of plaintiff’s proof, and not as upon a determination of the merits of the action on all the evidence. Columbia Bank v. The G. T. Church, 127 N. Y., 361; 38 St. Rep., 915; Place v. Hayward, 117 N. Y., 487; 27 St. Rep., 710. Hence, the specific point for adjudication is, whether the evidence, although insufficient to constrain the referee to find for the plaintiff, was yet such as required the submission of the issues to a jury and adequate to sustain a verdict for the plaintiff? An affirmative answer to this question involves, of necessity, a reversal of the judgment.. Scofield v. Hernandez, 47 N. Y., 313; Place v. Hayward, 117 id., 492; 27 St. Rep., 710.

It is error to withhold a case from the jury, “ if in any view of the evidence a verdict might have been rendered for the plaintiff, or if there.be questions of fact which might have been determined for the plaintiff, and which, if determined in her favor, would have entitled her to recover.” Clemence v. The City, 66 N. Y., 334, 338. So, on this appeal, we must assume every fact which the evidence tended to prove in plaintiff's favor; and every fact, in support of her cause of action, which may be deduced from the testimony by legitimate inference. Harris v. Perry, 89 N. Y., 308, 311. “ It is not error to refuse a nonsuit where, although the evidence is uncontradictory, conflicting inferences may be drawn therefrom; or where conflicting constructions or meanings may fairly be given to the language employed; the facts, not the evidence simply, must be undisputed to make the question one of law.” Smith v. Coe, 55 N. Y., 678.

From a review of the evidence, the conclusion is irresistible, that the learned referee was not at liberty to nonsuit the plaintiff.

On the trial defendant’s contention was, that plaintiff’s right of recovery being dependent, by the terms of the contract, on its complete performance, her assignor had forfeited all claim to compensation by a premature and wrongful abandonment of their service; to which her answer was, that by a breach of the contract on their part, he was justified in quitting their service. The «determination of this issue turned necessarily and fundamentally on the true meaning and construction of the contract, in this particular, namely: Whether the employment of plaintiff’s assignor was for service only in the city of Hew York, or whether the defendants had the right to establish and retain him in Chicago. Upon this point the terms of the contract are: That “ the parties of the first part agree to engage and employ the said party of the second part ” (plaintiff’s assignor), “ as a general assistant and salesman in their business of importing and selling upholstery goods, etc.” Quite obviously as to the locality of plaintiff’s service the contract is silent; and to ascertain the intent of. the parties in this particular, recourse is necessary to the circumstances attending the transaction. How, it was in evidence that plaintiff’s assignor resided in Hew York with his family; that defendant’s place of business was in Hew York; that during the first six months of his service plaintiff’s \assignor was employed in •Hew York; that his duties were, “to canvass the city trade.” Upon these facts, in connection with the contract, the intention of the parties would have been a question for the jury; and a finding by them that the defendants had no right to send plaintiff’s -assignor to reside and to labor out of the city would have had abundant evidence for its support. Hence, it was error for the •referee to solve the question as a conclusion of law arising upon ■undisputed evidence.

But the referee held the plaintiff “ estopped from insisting that ' iher assignor’s field of labor was only in the city of Hew York and the ground of the imputed estoppel is that “he went to Q hicago voluntarily and at his own request?” The assignor's testimony, however, is quite to the contrary; for he says: “Mr. -Ryer came to me and told me that Mr. Tynan had been pleased with the previous -trip, and that I could be of more service to them if I would go to Chicago, and he ordered me to go to Chicago. ” "The alleged estoppel then being an inference from equivocal and -conflicting evidence, the referee could not • predicate it as a legal proposition applicable to an uncontroverted state of facts.

It is indisputable, nevertheless, that plaintiff’s assignor did go to Chicago and there conduct defendant’s business for a period of time, and it was because defendants required him *to continue in -Chicago that he elected to treat the contract as at an end, and beforefits stipulated termination by his assignee bring this action for services rendered. The general question is, had plaintiff’s .assignor the right so to treat the contract ? If he had, the action was well brought. If he had not, plaintiff was not entitled to a recovery. On this appeal the particular question is, did it conclusively appear, as matter of law, on undisputed evidence, that plaintiff’s assignor had no" right to regard the contract as so broken by defendants as to authorize him to declare it at an end and to ■sue for services rendered? By his uncontradicted testimony it Appears that to conduct defendants’ business in Chicago with effect And profit required an outlay of $100 a month over the fifty dollars a week allowed him under the contract; that defendants failed to supply him funds for this necessary expenditure, and that because of that failure he abandoned the business in Chicago. By no term of the contract and by no item of evidence in the case is it apparent that the obligation to defray the expenses of the business was imposed upon plaintiff’s assignor; but the clear inference is rather that those expenses were to be provided for by the defendants. It results, therefore, that the refusal of defendants to supply plaintiff’s assignor with the means of conducting the business in Chicago justified him in abandoning it; and that their further refusal" to employ him plsewhere was equivalent, in legal effect, to a renunciation of the contract on their part, and so authorized him to sue for services rendered without plea or proof of entire performance.

We intend to intimate no opinion on the merits of the case. We impeach the validity of the judgment only as and because it professes to proceed upon inferences of law assumed as arising x om a • state of facts conclusively established by uncontradictory evidence. Had the learned referee not decided the case as involving only questions of law, but as presenting.issues of fact for his-determination, we might not have deemed it our duty to challenge his conclusions. In view of the ground upon which we dispose of the case, the absence of a certificate that the record contains all the evidence is immaterial.

Judgment reversed and new trial granted, costs to abide the event.

Bischoff, J., concurs.  