
    Kelly v. The Carthage Wheel Co.
    
      Employment for year — Guarantee of certain amount — Interpre- . .tation as to time and terms of contract — Renewal of contract by implication — Measure of damages for unjustifiable discharge of employe.
    
    
      1. In order to constitute a contract of employment for a year, it is not essential that the agreement shall contain express words of employment for that specific period. The intention of the parties in this respect, as in all others, must be gathered from the whole instrument, or agreement.
    2. A written' offer made by an operative to a manufacturer, to perform work and make certain articles at the latter’s factory, at specified prices, contained the following stipulation:
    “In making this agreement or contract, I will want you to guarantee me $3,000 per year, a proportion of this amount to be paid me each pay day and a settlement to be made at the end of each year, and if I should make more than the above guarantee, the difference be paid me at the end of each year when settlement is made.” The offer was accepted as made. Held, the acceptance of the offer created a contract for a year.
    3. Where, under such contract, the employe is continued in the same service of the employer after the expiration of the year without any new or different arrangement, a contract for another year, upon the same terms, arises by implication of law; and when, before the end of that year the employe is discharged without justifiable cause, a right of action acrues to him against the employer for breach of the contract.
    4. Where, by such contract, the employe was not required nor authorized to make any specified number or quantity of the articles therein mentioned, nor operate the factory to any given capacity, and no obligation was imposed on the employer to supply material or means for the manufacture of any quantity or number of such articles, nor keep the factory in operation for their manufacture, the measure of damages, in an action by the employe for his wrongful discharge, is the proportionate amount of the guaranteed yearly compensation, for that portion of the unexpired year remaining after his discharge.
    (Decided May 8, 1900.)
    Erroe to the Superior Court of Cincinnati.
    
      Action for damages by employe for wrongful discharge before expiration of contract of employment. Judgment for plaintiff. Reversed in general term. Judgment of reversal reversed.
    The action below was brought in the superior court of Cincinnati, by the plaintiff in error, against the Carthage Wheel Company, the defendant in error, to recover damages alleged to have been sustained by reason of his wrongful discharge before the expiration of his contract of employment with the company. The plaintiff recovered a judgment, which was reversed in general term, and the case is here on error to obtain a reversal of the general term, and affirmance of the special term.
    A sufficient statement of the case is contained in the opinion.
    
      Wilby & Wald, for plaintiff in error.
    Did the plaintiff below fail to show a cause of action? Or, in other words:
    Did the evidence warrant the finding that there was a yearly hiring? i. e., that Kelly’s contract of employment was by the year, or from year to year, and not at will?
    The trial court held that there was evidence of a yearly hiring. The general term held that the hiring was at will. 5 O. N. P., 310; 8 Dec., 549. Though the contract mentions no term for the duration of the service, yet it, with the other evidence, shows clearly that the parties intended the employment should last from year to year.
    We had supposed the law- upon this subject to be settled in this state by the decision of this court in Bascom v. Shillito, 37 Ohio Se., 431; a case quite similar to the case at bar.
    
      According to the English cases and some of the authorities in this country, the inference from a contract for no definite time, may be that a yearly hiring was intended.
    ..Story on Contracts, Section 962c.
    1 Parsons on Contracts, 518; Smith on Master and Servant, 41; Smith’s Mercantile Law, 532; Shouler’s Domestic Relations, 607.
    But in the case at bar we depend on no such slender inference as would be sufficient under this rule. Here we have not only the express stipulation for compensation by the year, but other facts, which sustain the finding of the jury and the judgment of the trial court.
    That a stipulation in a contract of hiring, fixing the rate of compensation for a definite time, may govern the interpretation of the contract as to its duration, or in other words, that a yearly hiring may be inferred from a contract stating the compensation to be so much per annum, is laid down in the text books and has been so held by the courts of England and America whenever the question has been squarely presented to them for decision. 14 Am. and Eng. Ency. Law., 762; 2 Story on Contracts, 5 Ed., sec. 1291; 1 Addison on Contracts, 8th Ed., p. 633; Smith on Master and Servant, 86 and 89; Wood on Master and Servant, 265; 2 Chitty on Cont., 841 (11th Am. Ed.).
    This rule as to the inference which will be drawn from the reservation of annual wages is again more than we need in the case at bar, because we have here, in addition to the language of the contract fixing the compensation, other circumstances which in Bascom v. Shilito, were held to be relevant and admissible in aiding the jury to determine the intention of the parties.
    
      
      Tatterson v. Suffolk Mfg. Co., 1870, 106 Mass., 56; Norton v. Cowell, 65 Md., 359, 1886; Fawcett v. Cash, 5 B. and Ad., 908; King v. Birdbrooke, 4 T. R., 245; Beach v. Mullen, 34 N. J. L., 343; Franklin Mining Co. v. Harris, 24 Mich., 115; Horn v. Western Land Association, 22 Minn., 233 (1875) ; Emmons v. Elder-ton, 4 H. L. C., 625; Strauss v. Gross, 1893, 2 Tex. Civ. App., 432; Kellogg v. Citizens’ Ins. Co., 94 Wis., 554; Dickinson v. Norwegian Plow Co., 96 Wis., 376.
    To the same effect are the English cases, from some of which we quote: Turner v. Robinson, 5 B. & Ad., 798; Down v. Pinto, 9 Exch. Rep., 327; Emmons v. Elderton, 4 H. L C., 624; Ridgeway v. Hungerford Market Co., 1 H. & W., 224; Foxall v. International Land Co., 16 L. T. R., 637; Buckingham v. Canal Co., 46 L. T. R., 885.
    If the hiring was by the year, or for at least a year, it was renewed for another year by the holding over without any new arrangement.
    This rule is well settled. Its application has been admitted all through this litigation by our learned adversaries, and it was expressly recognized, by the general term early in the opinion. 5 Ohio N. P., 311; 8 Dec. 549; Adams v. Fitzpatrick, 125 N. Y. 124; Ingalls v. Allen, 132 Ill., 170; Wallace v. Floyd, 29 Pa. St., 184; Ranck v. Albright, 36 Pa. St., 367; McCullough v. Carpenter, 67 Md., 554; Simms v. Wayne Co., 58 Mich., 503; Iron Co. v. Richardson, 5 N. H., 294; Herman v. Littlefield, 109 Cal., 430; Weisse v. Board of Supervisors, 51 Wis., 564; Sewing Machine Co. v. Buddy, 48 Ill., 189; Nicholson v. Patchin, 5 Cal., 475.
    In the three cases last cited the action was by the servant for an increase of salary after the holding over, but under the rule stated he was held to the terms of the original agreement, which had been renewed by implication, from the contract of the parties.
    Was error committed in permitting the plaintiff below to introduce evidence tending to prove what profits might have been realized by him upon the wheels which were manufactured by the company subsequent to his discharge?
    On the general question of the admissibility of evidence as to prospective profits; Taylor v. Bradley, 39 N. Y. 129; Masterson v. Brooklyn, 7 Hill, 61.
    This court recently had before it in Wellston Coal Co. v. Franklin Paper Co., 57 Ohio St., 182, a case of this class where it was necessary to go to the prior events for the evidence of the probable profits.
    This decision by this court establishes undoubtedly that the testimony of the number of wheels produced prior to Kelly’s discharge was competent to go to the jury as tending to show what would have been made after his discharge during the time his contract had to run. The testimony shows that 51,959 sets of wheels were made during the eighteen months prior to the discharge while Kelly was in the employ of the wheel company, an average of 18,319 sets of wheels for every six months during that period. The verdict of the jury was apparently computed on a production of only about 16,000 sets of wheels.
    The three following cases are also of the class, in which it was necessary to refer to the past profits, for evidence tending to show what the probable future profits would have been: Bagley v. Smith, 10 N. Y., 189; Dart v. Lambier, 107 N. Y., 661; Raynor v. Blatz Brewing Co., 76 N. W. R., 313.
    Probable profits, as shown by those for previous years from the conduct of the same business in the same place, by the same party, may be recovered as damages for breach of the lessor’s agreement to repair, whereby continuance of the business is prevented.
    Case of a lease of a theater and saloon, and a breach of lessor’s covenant to repair. Richmond v. The Railroad, 40 Ia., 264; Wakeman v. Wheeler & Wilson Co., 101 N. Y., 205; Wells v. Alexandre, 130 N. Y., 642; Mueller v. Bethesda Mineral Water Co., 88 Mich., 390; 1 Sutherland, 133 (old ed.), pp. 141-2 (second ed.); Shell v. Plumb, 55 N. Y., 592; Goldman v. Wolff, 6 Mo. App., 490; Wallace v. Tumlin, 42 Ga., 462; Philadelphia R. R. v. Howard, 13 How., 307; United States v. Speed, 8 Wall., 77; United States v. Behan, 110 U. S., 338; Karrick v. Hannaman, 168 U. S., 328.
    It was held that the inference in such cases was that there would be a profit in the future. Simpson v. London Electric Ry. Co., 1 L. R. Q. B. D., p. 274.
    Moreover, the evidence, the legality of which is now under consideration, being that named in the second finding of error by the general term and there described as “tending to prove what profits might have been realized,” etc., was all of it admitted without any objection or exception by the wheel company, and therefore its admission could not legally be made the ground for the reversal of the judgment of the trial court. Many of the courts have said that because the damages in such a case are difficult of proof, is no reason why the party who has been wronged should be said to have no remedy.
    Nor can it now be argued upon any ground other than that then stated to the trial court by counsel for the wheel company, that the testimony in question should not have been received. Hinde’s Lessee 
      v. Longworth, 24 U. S. (11 Wheat.), 199; 1 Fed. Dec., 125; Burton v. Driggs, 87 U. S. (20 Wall.), 125 at 133; Wroe v. State, 20 Ohio St., 471; Thayer v. Luce, 22 Ohio St., 62; Sigafus v. Porter, U. S. C. C. App., 84 Fed. Rep., 430; B. & O. R. R. Co. v. Hellenthal, 88 Fed. Rep., 116; Mitchell v. Marker, 66 Fed. Rep., 139; Toptitz v. Hedden,, 146 U. S., 252; United States v. Sharpleigh, 54 Fed. Rep., 126.
    Finally, we submit that there is good authority for the correctness of the suggestion made by the trial court. In other words, some of the cases hold that under certain circumstances direct testimony as to prospective profits may be given: Rhodes v. Baird, 16 Ohio St., 573; Manning v. Fitch, 138 Mass., 273.
    
      Marsh & Richie, for defendant in error.
    The only contract between the parties is the one evidenced by the letter of the plaintiff in error, and is a contract at will.
    A contract as to its duration must be, for a definite, determinate period, or it must be at will. If it be not one it is the other.
    To make a contract for a definite period the parties must agree as to the time when the contract relations shall begin and when they shall end. The beginning and ending are as much a part of and the subject of contract as any other terms that may be found in the contract. Any contract in the making of which the minds of the parties have not met and agreed upon both the beginning and the ending of the contract relations is necessarily one at will, no matter what expectations as to duration may have existed in the minds of the contracting parties.- Applying this test to the written contract of the parties herein, construed in the light of the circumstances and situation of the parties at the time it was entered into, it would seem that nothing could be clearer than that the parties did not enter into a contract for a definite term. While it is clear they did agree upon the time of beginning, they did not agree upon the time of its ending. The contract was wholly in writing, prepared by the plaintiffs in error, and its meaning and intent as to whether the parties contracted for a fixed term for its duration must be determined by the writing itself. Its construction must be determined by the court, aided by such extrinsic evidence as may be competent to enable the court to put. itself in the situation of the parties. It was error in the trial court to submit the question of the construction of the contract herein involved to the jury. Monnett, Admr., v. Monnett, 46 Ohio St.. 30.
    We submit that the contract construed in the light of the situation and circumstances of the parties shows clearly that neither of the parties had any idea or intention of fixing the duration of the contract or the time of its expiration.
    Kelly was an expert wheel-maker and an independent contractor for that kind of work. Mr. Burrows was president of the defendant company, a going concern, which, it is reasonable to presume, would carry on the business for an indefinite time— many years, in fact. Mr. Kelly was to take full charge of and run the factory on contract work. For a year? No. For two years? No. For ten years? No. But for a long but indefinite period. Mr. Kelly testified that it took him at least eight months to get his force organized to enable him to carry on his work under his contract with any show of profit. This was known to him at the time he entered into the contract. In view of these facts and circumstances it is totally unreasonable to suppose or infer that Mr. Kelly and Mr. Burrows mutually understood and agreed that the contract should run for- one year only and their contract relations be dissolved at the expiration of one year. This would be the case if the parties intended to enter into a term contract. It is unreasonable to suppose that Mr. Kelly for so short a time would have left another position to take the one he did, when such contract was liable, under his own showing, to have been a losing one to him.
    The writing itself does not contain a single word intended to fix or limit the duration of the contract.
    The term “$8,000 per year,” of itself, is evidently designed to fix the rate of compensation. The latter part of the clause, to-wit, “a settlement to be made at the end of each year,” shows that these terms were used not for the purpose of fixing the duration of the contract or marking a time for its termination, but for the purpose of fixing the times and periods when he was to adjust his balances and get his pay. The use of the word “each” in this clause is totally inconsistent with the idea of an intention to limit the contract to one year from date. It seems to be clear what the parties intended. They agreed when the contract should begin, but they did not agree when it should end. Their expectation was undoubtedly that it would run for a year, but there was no agreement or intention that it should end at a year; that it was to be a contract that would probably be in force for many years, but how long they did not not know nor did they agree to define. It was purely a matter of expectation, but expectation does not make a term contract. If a contract should be terminated sooner by the action of one party or the other than was expected, the court can afford the party complaining or disappointed no relief.
   Williams, J.

There appears to be no substantial conflict in the evidence, nor material controversy about the facts. The defendant, a corporation, was the owner of a plant for the manufacture of buggy and wagon wheels, situated near the village of Carthage, Ohio, and the plaintiff was a practical wheel-maker. The contract between these parties was entered into by the verbal acceptance on the part of the defendant, through G. H. Burrows, its president, of the following written proposal of the plaintiff:

“Carthage, Ohio, April 5, 1892.

Mr. G. H. Burrows,

Cincinnati, Ohio.

Dear Sir:—

For the privileges and prices herein named, I will agree to take charge of and run your factory at Carthage, by or on contract work.

I want full charge of the factory, and management of the business as far as manufacturing goes. I mean by this that Iwant charge of the buying of all merchandise, supplies, etc., or rather that I must be consulted as to what we buy, where we buy it, and what we should pay for it.

I want full charge of all employes. I mean that all help employed or paid by you will be subject to my orders just the same as those employed and paid by me, except in one instance, or rather one capacity, and that is, that the man or men you may have to inspect and receive the wheels, him or them to have full say, and right to demand a good standard grade of work and I will insist on him not receiving, unless it is right, as my responsibility ceases as far as the work is concerned, when he receives it. I will he personally responsible and will answer to you for the general management of the business. My aim will be that wiiat benefits the business, benefits me. I don’t ay ant you to get the impression that I am trying to dictate everything. You know that every business must have a head, and Carthage factory is not large enough for more than one.”

Here follow's a descriptive list of w-heels proposed to be manufactured, with price for each class or description of Avork, which, being long, and unimportant in the disposition of the case, is omitted. The contract then proceeds:

“I w'ould expect you to pay for the following help: Shipping and handling wiieeds after they are received. Inspecting or receiving Avheels, also all office help and night watchman.

In making this agreement or contract, I will Avant you to guarantee me $3,000.00 per year, a proportion of this amount to be paid me each pay day and a settlement to be made at the end of each year, and if I should make more, than the above guarantee, the difference be paid me at the end of each year wffien settlement is made.

Yours Truly,

P. J. Kelly.”

The acceptance of this proposal wrns made sometime between its date and the first day of May, following, at Avhich time the plaintiff, under the agreement thus made, entered into the employment of the defendant, and so continued until the 3d day of November, 1893, wiien he Avas informed his services Avere no longer needed. The only cause assigned for his discharge Avas that, owing to the then prevailing depression of business the defendant could not afford to pay the prices named in the agreement, and it was necessarytoreducethe prices in order to compete with other like products in the market. The defendant had .previously requested thfe plaintiff to reduce Ms prices, and he consented to make a reduction, but not an amount satisfactory to the defendant. The plaintiff has been paid all that was due him up to the time of his discharge; and the damages he seeks to recover in this action are made up of §1,500.00, being one-half of the amount of the guaranty of §3,000.00 referred to in the contract, and which he claims for the six months following the date of his discharge, and the further sum of §2,000.00 which he claims he could have made as profits under his contract during that period, in addition to the sum so guaranteed, making in all §3,500.00, for which, with interest, from November 1, 1893, he asked judgment. On the trial, to prove his profits, the plaintiff gave evidence tending to show the number of wheels that were turned out at the defendant’s factory during the six months following his discharge, and testified that his profits, if he had been allowed to make them, would have exceeded the amount he claimed in his petition. Evidence was also given tending to show the number of wheels made, and the plaintiff’s profits on them, prior to his discharge. The jury gave the plaintiff a verdict for §4,095.00, being the full amount claimed, with interest. The reversal by the general term, of the judgment rendered on the verdict, was upon the grounds, (1) that the contract did not constitute an employment for any definite time, and therefore, the plaintiff was subject to discharge at the will of the defendant, and (2) that the evidence to prove profits on wheels made after plaintiff’s discharge was inadmissible.

We are unable to concur in the first ground stated upon which the judgment recovered by the plaintiff was reversed; and are disposed to adopt the construction of the contract advocated by the plaintiff, which, on the trial was, and here is, that under it his employment was for at least one year; and that, having continued in such employment after the end of' the first year without any new arrangement, a contract arose for the second year upon the same terms. There seems to be a want of harmony in the decisions in regard to the effect of a contract of hiring at a specified rate of compensation per year, some holding that such stipulation imports a hiring for a year, and others the opposite. We find it unnecessary here to consider that question. It is settled that express words that the contract shall continue for a year are not essential to constitute an employment for that period. Bascom v. Shillito, 37 Ohio St., 431. And, in the interpretation of contracts of this kind, as well as of all others, none of their provisions should be ignored or overlooked, that serve to indicate the intention of the-parties. The language of the contract in question, by which the defendant agreed to guarantee to the plaintiff the sum of $3,000.00 per year, is not an agreement to insure a compensation at a specified rate per year, but is an undertaking that the plaintiff shall receive the gross sum of $3,000.00 for a year; and the further language that a portion of this sum shall be paid to the plaintiff “each pay day, and a settlement to be made at the end of each year,” and that if the plaintiff should make more than the sum so guaranteed the difference should be paid to him “at the end of each year,” plainly imports that the settlements referred to should embrace - the transactions of an entire year, through which the employment was to extend, and amounts to a contract for such employment during that year. Of the many cases which sustain that construction, but a few that are most directly in point will be noticed here. In Emmens v. Elderton, 4 H. L. C., 624, the agreement was that the plaintiff, the solicitor of the defendant, should “receive and accept a salary of £100 per annum in lieu of rendering an annual bill of costs for general business transacted by the plaintiff,” as such attorney and solicitor for the defendant. It was held, Coleridge, J., page 663, that: “The stipulation is for a salary of £100 by the year, not at the rate of £100 for a year, and it is unreasonable to infer that any less period of duration, or no period at all, was contemplated.” Following this case, it was heid in Horn v. Western Land Association, 22 Minn., 233, that: “An Appointment of an attorney ‘at a salary of $1,000 per year, payable quarterly’ and an acceptance of such appointment ‘upon the terms offered’ constitute a consummated contract of employment for at least a year. Neither party, without the other’s consent, can lawfully rescind such contract, without cause, during the year.” The court said: “The contract of employment was by the year at a fixed salary for such period, and not for an indefinite period at the rate of so much per year. This construction accords with what, must reasonably be supposed to have been the. intention of the parties, considering the nature of the employment and the character of the services agreed to be rendered.” In Norton v. Cowell, 65 Md., 359: “An offer was made by letter to give employment to the person to whom the letter was addressed, upon terms which were fully stated; and the letter concluded, ‘Your wages will be $100.00 per month with all hotel and other expenses, and if you give me satisfaction at the end of the first year, I will increase your salary accordingly.’ ” ■ The proposal contained in the tetter was accepted. The court held: “that the letter and its acceptance, by legal construction, constituted a contract of hiring for one year, and the party hired having been discharged without justifiable cause, before the expiration of the year, was entitled to recover the balance of the year’s wages, he having been paid to the date of his discharge.”

It is generally accepted as an established rule that, where there is a contract of hiring for a year and at the expiration of that time the employe is continued in the same service of the employer without any new or different arrangement, a contract for another year, upon the same terms and conditions, arises by implication of law. In Adams v. Fitzpatrick, 125 N. Y., 124, it is held that: “Where one enters into the employ of another, under a contract for one year’s service, at a yearly salary, and continues in the employ after the expiration of the year, the presumption is that the parties have assented to a continuance of the service for another year at the same salary.” . A mini-her of authorities on this point are collected in the brief for the plaintiff in error. They rest upon the same principle that when a tenant holds over after the expiration of a lease for a year, without objection by the landlord, a tenancy is created for another year upon the terms of the original lease. Railroad Co. v. West, 57 Ohio St., 161.

The discharge of the plaintiff before the end of the second year, upon which he had entered, appears to have been without legal cause, and a right of action thereupon accrued to him against the defendant for a breach of contract.

The proper measure of the plaintiff’s recovery, however, as we interpret the contract, was largely exceeded by the amount awarded him by the verdict and judgment in special term. The plaintiff was neithér bound nor authorized to make any specified number or quantity of wheels, nor to operate the factory to any given capacity. And, it is a conspicuous feature of the contract, that it imposes no obligation on the defendant to supply material or means for the manufacture of any quantity or number of wheels, nor to keep the factory in operation for their manufacture. The only provisions of the contract on the subject are contained in the clauses numbered 1 and 2 already quoted. It will be noticed that the final and only obligatory provision in the first clause, as therein explained, is that the plaintiff should be consulted concerning what material should be bought, where it should be bought, and the prices that should be paid; and the binding provision of the second clause is, that the plaintiff should have control of certain help employed by the defendant. By neither provision was the defendant bound to buy any material, nor supply any help, nor keep its factory in operation. What should be done in these respects was left entirely to the defendant’s own option. It might, as it chose, suspend the operation of its factory as often, and for such periods of time as it deemed best, or supply just such material and means for running it, or none at all, as should be deemed proper by the defendant. The protection afforded the plaintiff by the contract, in either case, was the amount of compensation guaranteed to him for the year; and that constituted the only source of his compensation when the defendant, in the exercise of its option in that respect, should decline.to furnish him the means and opportunity to manufacture the designated articles in such quantity that, at the stipulated prices, would amount to more than that sum. This appears to be the construction which the parties placed upon' their agreement. The evidence shows that during the first year the factory was entirely shut down for a considerable time, and was run irregularly most of the remainder of that year, and it was not in operation over six weeks of the first half of the second year, that is, up to the time of the plaintiff’s discharge. And the testimony of the plaintiff on this subject was to the effect that he recognized the right of the defendant, under the contract, to shut down the factory at any time, and if the defendant did not see fit to start up, he relied entirely on the guaranty for his compensation. This being so, it seems unimportant, with respect to the compensation of the plaintiff, whether he is relieved from the performance of work under the contract for a given time, by the suspension of operations of the factory, or by the termination of his employment for a like period. Substantially, the consequences resulting to the plaintiff in the latter case are not different from those of the former. The supposed product of the factory that might have been turned out by the plaintiff during the six months following his discharge, if the defendant had furnished him during that time the help and material he desired, could not properly be made the basis for estimating his damages, for, as has been seen, the defendant was under no obligation to provide him with such means of manufacture, or the use of the factory for that purpose, and unless the defendant voluntarily chose to furnish these, the plaintiff’s only compensation was that fixed by the guaranty; and, that the defendant did not so choose. Is shown by the fact of the plaintiff’s discharge. Nor, for the same reason, could the plaintiff’s damages be estimated upon the basis of the output of the factory under the management and by the labor of others whom the defendant saw proper to employ. It was only when the plaintiff, with the means and opportunity which the defendant should choose to furnish him, should, in the language of the contract, “make more” than the amount of the guaranty, that he was entitled to demand more. So that, but for the provision of guaranty contained in the contract, the plaintiff’s damages would have been nominal merely. Hence, having been paid in full to the time of his discharge, the proper measure of his damages is the proportion, for the sis months foliowing his discharge, of the guaranteed yearly compensation, which amounts to fifteen hundred dollars, on which he is entitled to interest from May 1, 1894. Our view of the case renders it unnecessary to consider the competency of certain testimony given by the plaintiff to prove what he claimed would be the profit he could have earned during the last sis months of the contract, though it is clear, we think, that if the case were one in which such profits could be allowed, the testimony, in several material particulars, was incompetent, and the objections were sufficiently made.

As the contract itself furnishes with certainty the legal measure of the plaintiff’s damages, the judgment of the general term will be reversed, and that of the special term modified by reducing the amount to $1,500.00 with interest from May 1, 1894, to the first day of the term at which the judgment was rendered; and the judgment for that amount will bear interest from that time.

Judgment accordingly.  