
    John P. Laughlin and Clara C. Laughlin, Respondents, v. Philip Manson, Appellant.
    (Supreme • Court, Appellate Term,
    December, 1909.)
    Evidence — Parol evidence — The general rule and its applications — Instruments incompletely expressing intention of parties — General rule.
    Master and servant — The relation — Acts constituting discharge.
    Where, in an action to recover for breach of contract of employment made in New York city, it appears that defendant, in a letter delivered to one of the plaintiffs, agreed to employ him to manage a hotel in Bermuda of which defendant was the lessee and to employ said plaintiff’s wife as general assistant at a joint salary of $150 a month, the plaintiffs to take charge in a few days, from which time the salary was to commence, the letter, in view of all the circumstances, making no provision as regarding transportation to and from Bermuda and none regarding the boarding or lodging of the plaintiffs, nor regarding the terms of their employment in the place to which they were to go, is obviously, upon its face, an incomplete memorandum of the contract; and it was not error to permit plaintiffs to testify that there was a definite hiring for two months with the understanding that their future employment should depend upon the success of their management.
    Where, upon employing plaintiffs, defendant told them that one H was acting as his representative in Bermuda and that he and one M, to whom defendant gave plaintiffs a letter, would instal them, the plaintiffs were justified in dealing with H and M as agents of defendant in regard to the matter of taking possession of the hotel.
    Where plaintiffs found H in actual possession of the hotel, exercising control, and he refused to permit them to take charge of the place and ordered them out, and they communicated the situation to defendant who ignored their letters and refused to see their attorney, the facts show a breach of the contract of employment by the defendant and not a failure to perform the contract on plaintiffs’ part, as it was no part of their duty to take possession by force against the protests of the agents whom the defendant had himself accredited to them.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, first district, borough of Manhattan, in favor of the plaintiffs, rendered after a trial by the court, without a jury.
    Wile & Oviatt, for appellant.
    Francis X. Carmody, for respondents.
   Giegerich, J.

The action is to recover damages for breach of a contract of employment. The answer was, in effect, a general denial.

The defendant was the lessee of a hotel at St. George, . Bermuda, and, in February, 1909, advertised in the city of Mew York for a manager to take charge of the business. The plaintiffs, who are husband and wife, answered his advertisement and, after several interviews, were engaged by him, the husband to act as manager of the hotel and the wife to assist him generally. When the negotiations had been concluded, the defendant wrote and delivered the following letter to the plaintiff John 'P. Laughlin:

“ Mew Yams.,' March 2, 1909.

“Mr. John P. Laughlin,

“Mew York City:

“ Deab Sib.— In accordance with our conversation, I will employ you to manage the St. George’s Hotel in Bermuda and your wife to assist you generally by looking after the housework and also assist in the front of the house; your joint salary to be one hundred and fifty dollars ($150.00) per month. You are to take charge on March 6th, 1909, from which date your salary will commence.

“Yours very truly,

“Philip Manson.”

The defendant also gave the plaintiffs a letter of introduction to a Captain Myers, who was the president of the corporation which owned the hotel property, stating that he had engaged the plaintiffs in the capacities already mentioned.

The plaintiffs accordingly went to Bermuda, arriving there on March 6, 1909. On their arrival they presented their letter of introduction to Captain Myers who, however, was about to leave for New York and, not having time to go to the hotel with them, directed them to see Harry Manson, the defendant’s brother, and made the following indorsement on the letter:

“ Mr. Harry Manson, Please let Mr. Miles take his former position. He is employed by the week. You represent your brother, Philip Manson. Mr. Laughlin will arrange with you.”

On the evening of their arrival the plaintiffs, accordingly, saw Harry Manson and presented the letter with Captain Myers’ indorsement, to him. He said: “ I don’t know what my brother means by sending a man down here now as manager. I cannot understand what he means by sending down a manager when I cablegrammed him that I had placed a manager in here. I cannot place you now. I cannot let this man go who has been here and assisting us for two or three months; and the guests have learned that you have come down in a ship some way or another, and they are all up in arms, and they will all leave tomorrow, and the help would walk out to-morrow if you took possession.” The plaintiff John P. Laughlin, however, insisted that he must take charge; and it was finally arranged that Harry Manson should telegraph his brother for instructions. Later, however, Harry Manson said: There is no use of your talking of this cablegram. I have the power of attorney in this hotel. I am his (the defendant’s) representative and I am going to run this hotel. It does not make any difference what my brother wires me. It would be detrimental to him and he would lose money. You do not want my brother to lose money,” The plaintiff John P. Laughlin said that he did not, but that he did want the position. Apparently no cable was sent by Harry Hanson to his brother. Harry Hanson further said that, if his brother wanted to come down there and run the house he could do it, but as long as he was there he was running the house; that he had a power of attorney from his brother to run the house and wás going to do it.

On one occasion the plaintiff John P. Laughlin went behind the desk in the hotel, took off his hat as though he was in possession, and stayed there until one or two o’clock in the morning. While he was there Harry Hanson came in and told him “that the help was disrupted.” The next morning, about five thirty o’clock, he saw Harry Hanson in the office and the latter said that he had been out for two hours hunting up the help and trying to get them to come back and go to work; and he added, “I order you out of this office and I do not want you to go into the kitchen, and if you do we will have no help here to-day and the guests will all leave.”

The plaintiffs wrote several letters to the defendant, explaining the situation in detail and asking instructions. The defendant admitted that, although he had received these letters, he had made no answer to them.

The plaintiffs also consulted a Hew York attorney who happened to be at the hotel at the time and who, upon his return, wrote the defendant, asking him to appoint an interview when he could see the defendant and explain the condition of affairs in Bermuda with a view to straightening out the situation. The defendant, however, refused to see the attorney or have anything to do with him.

After remaining in Bermuda for two weeks and being advised by Captain Hyers and instructed by Harry Hanson to return to Hew York, the plaintiffs did so by the steamer sailing on Harch twentieth. They later brought this action to recover damages for breach of the contract of employment and recovered judgment from which the defendant has taken this appeal.

It is urged that, as the letter of Harch 2, 1909, did not specify that th© plaintiffs’ employment was te be for a definite time, it must be taken to have been a hiring terminable at the will of either party. This would be so if the plaintiffs’ case rested on the letter alone. Martin v. New York Life Ins. Co., 148 N. Y. 117, 121. But both the plaintiffs testified that they were engaged for two months, absolutely, at the salary named in the letter, with the understanding that their employment beyond that period would depend upon the success of their management.

The letter has no appearance of being a complete memorandum of the agreement between the parties. In view of the circumstances surrounding the parties, the distance of the place of performance and the nature of the employment itself, I think it is quite obviously incomplete on its face. It makes no provision regarding transportation to Bermuda, and none regarding the board or lodging of the plaintiffs, nor regarding the term of their employment in the distant place to which they were to go. Of course it is conceivable that the parties might have made the bare agreement expressed in the defendant’s letter and have left their respective obligations thereunder to be fixed by the law. But, viewed in the light of the circumstances surrounding the parties at the . time of its execution, the writing has not that appearance of completeness on its face which would justify the exclusion of parol evidence that further and consistent terms were included in the agreement between the parties. Eighmie v. Taylor, 98 N. Y. 288. I think, therefore, that there was no error in admitting the testimony of the plaintiffs that there was a definite hiring for two months; and the testimony so given was sufficient to sustain that conclusion.

It is further objected that the acts and declarations of Harry Hanson were improperly admitted in evidence, and that the plaintiffs’ case shows that they abandoned the performance of their agreement and consequently cannot recover. Both plaintiffs, testified, however, that in the course of their negotiations with the defendant he had told them that Harry Hanson was acting as his representative in Bermuda; and there was also testimony that, although the defendant had told the plaintiffs more or less of the disorganized condition of the business and of his difficulties with his employees, he had assured them that there would be no trouble whatever in taking possession and that Captain Myers, to whom he gave them a letter, would instal them. "Upon this phase of the case I am satisfied that the plaintiffs were justified in dealing with Harry Manson and Captain Myers to the extent that they did, as the agents of the defendant, and that what these agents did and said on the occasions in question was properly admitted in evidence. The plaintiffs found Harry Manson in actual possession of the hotel and exercising control, and he refused to permit them to take charge of the place and ordered them out. The plaintiffs appear to have acted in the highest good faith in the difficult situation in which they found themselves and seem to have desired to avoid doing anything which would jeopardize the interests of their employer or' disorganize his business. They communicated the situation to him in detail in several letters and desired their attorney to call upon him and explain the condition of affairs and ask instructions. He ignored their letters and refused to see their representative and now maintains that, as they were employed to manage and run the hotel and have admittedly failed to do so, they are out of court because of nonperformance of their part of the agreement. But the trial court evidently believed that they had been employed to manage and conduct a hotel of which they had been promised peaceful and undisputed possession, and that it was no part of- their duty to take possession by force or arms or against the protests of the agents whom the defendant had himself accredited to them. The evidence amply supports that view of the case, if indeed it would have sustained any other.

■We have examined the other points made by counsel for the appellant, but do not find any that require a disturbance of the judgment which must, accordingly, be affirmed, with costs.

Goff and Lehman, JJ., concur.

Judgment affirmed, with costs.  