
    Solomon Obrentz, Respondent, v. Samuel Wesenfeld and Another, Appellants.
    (Supreme Court, Appellate Term, First Department,
    June, 1918.)
    Damages — action to recover for alleged wrongful discharge — contracts ■ — evidence — services.
    Where in an action to recover damages for an alleged wrongful discharge it is not pleaded that the written contract of employment was abrogated, and though there is no evidence that plaintiff threatened to abandon the defendants’ service unless a new contract was made it does appear that he asked for an increase of compensation which was conceded without either party intending to make a new contract, plaintiff’s testimony that he was not required in return for such increase to perform any duties not called for by the original agreement, received over defendants’ objection that as plaintiff was already bound to perform the services called for by the contract at an agreed compensation there was no consideration for the promise to pay the additional compensation, is error, and a judgment for plaintiff under a charge that if the jury found that he was wrongfully discharged the damages must be assessed upon the modified contract will be reversed and a new trial granted, even though this court might modify the judgment by deducting the difference in the amount of damages under the contract and under the alleged modification thereof.
    
      Appeal by defendants from a judgment of tlie Municipal Court of the city of New York, borough of Manhattan, sixth district, in favor of plaintiff.
    Hartman, Levy & Hartman (Hugo Levy, Gustav Hartman, of counsel), for appellants.
    Cohen, Haas & Schimmel (Isidore Cohen, of counsel), for respondent.
   Lehman, J.

The plaintiff herein was employed by the defendants on December 9, 1916, on an agreement in writing whereby he was to receive a salary of ten dollars a week and three-fourths per cent of the entire net amount of business beginning December 9, 1916, and expiring June 31, 1917. The plaintiff claims that he was wrongfully discharged on the 22d day of May, 1917, and has brought-an action to recover damages for the alleged wrongful discharge. In his complaint he sets forth the agreement in writing made between the parties on the 9th day of December, 1916, and then pleads that “ subsequently, and on or about the 1st day of February, 1917, the said agreement by mutual consent was changed and modified so that instead of the plaintiff’s salary being ten dollars per week, it was fixed at twelve dollars per week, and that instead of his commissions being three-fourths of one per cent on the entire net amount of business during the term of the contract, it .was fixed one per cent of such amount. ’ ’

The plaintiff testified that the alleged change and modification of the contract was made at his request because he found his compensation too small, and that he was not required in return for such increase of pay to perform any duties not called for in the original agreement.

The defendants objected to any evidence as to this modification on the ground that since the plaintiff was already bound to perform the services called for by the contract at an agreed compensation the defendants received no consideration for their promise to pay the additional compensation. The trial judge nevertheless admitted this testimony and charged the jury that if they found that the plaintiff: was wrongfully discharged his damages must be assessed upon the basis of the modified contract. In the case of Vanderbilt v. Schreyer, 91 N. Y. 392, the court said, per Ruger, Ch. J.: “ Pollock states the rule as follows: neither the promise to do a thing, nor the actual doing of it, will be a good consideration if it is a thing which the party is bound to do by the general law, or by a subsisting contract with the other party.” (Pollock on Principles of Contract, 161; Crosby v. Wood, 6 N. Y. 369; Deacon v. Gridley, 15 C. B. 295.) ‘ Nor is the performance of that which the party was under a previous valid, legal obligation to do a sufficient consideration for a new contract. ’ (2 Parsons on Contracts, 437.) When certain sailors had signed articles to complete a voyage but at an intermediate port refused to go on, and the captain thereupon promised to pay them increased wages, it was held that the promise was without consideration. (Bartlett v. Wyman, 14 Johns. 260.) ”

The authority of the case of Vanderbilt v. Schreyer appears never to have been doubted, and it establishes the rule applicable to this question at least in this state, though there are decisions in other jurisdictions not entirely in accord with these views. See De Cicco v. Schweizer, 221 N. Y. 431. There are also, it is true, some early decisions in this state which held that where there is a disagreement between the parties as to a part of the work to be done under the contract a new agreement in respect to such part is binding upon the parties, and so much thereof is taken out of the original contract. Stewart v. Keteltas, 36 N. Y. 388; Lattimore v. Harsen, 14 Johns. 330.

In the former of these cases, however, it would appear that the original contract did not correctly set forth the actual agreement of the parties, and the modification was made in order to correct this error and in settlement of a real dispute; and in the second case the original contract provided for a compensation to the plaintiff in the sum of $900 for certain work which they hound themselves to do under the penalty of $250, and the second contract provided for a change in the form of compensation whereby the defendants agreed to pay for materials delivered and for labor, at day rates without any reference to the written contract. In both these cases, therefore, there was a complete rescission of the earlier contract founded on what the court held to be sufficient consideration. It is true that in the case of Lattimore v. Harsen the court held that this consideration was to be found in the fact that the plaintiffs under the first contract had a right to stop work upon payment of the penalty, and gave up this right and agreed to perform the contract for additional pay. It would seem at least doubtful whether these early decisions can be held to be authority for the proposition that a contract can be abrogated and a new contract made for the same work, but at a higher rate of pay, where the sole consideration for the abrogation of the old contract and the making of the new contract consists in the agreement of the original contractor actually to perform the work which he had agreed- to do rather than to abandon that work and to pay damages for such abandonment, for, in the absence of any stipulation in the original contract limiting or fixing the damages which the contractor must pay for a breach of his contract, the party for whom the contractor had agreed to perform such services would be in no better position after the making of the new contract than he was before, the contractor could again abandon his contract and be subject only to smaller damages than if the rate of compensation had not been increased. It is unnecessary, however, for us to decide this question at the present time, for in any event the rule is established in this state beyond question that without an actual abrogation of the earlier contract si mere modification of that contract whereby the contractor was to receive larger compensation would be without consideration.

In the present case the plaintiff himself has pleaded that the original contract was changed and modified and has not pleaded that it was abrogated. Moreover, there is no testimony in the case that the plaintiff threatened to abandon the defendants’ service unless a new contract were made with him, but on the contrary the evidence shows that the plaintiff merely asked for an increase of compensation and this increase was conceded without either party intending to make a new contract. It follows that the trial judge erred in allowing the jury to assess the damages under the contract as modified. The judgment in this case was for the sum of $186. We might, in this case, modify the judgment by deducting the difference in the amount of the damages under the written contract and under the alleged modification of such contract. Upon the present record, however, the proof of damages suffered is so unsatisfactory that it seems that in the interests of justice a new trial should be had.

Judgment is, therefore, reversed, and a new trial ordered, with thirty dollars costs to appellants to abide the event.

Pendleton and Finch, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event. •  