
    Clara Rafalo and Morris Goldberg, Respondents, v. Joseph Edelstein and Boris Tomashefsky, Appellants.
    (Supreme Court, Appellate Term, First Department,
    March, 1913.)
    Contracts — action to recover for breach of — theatrical contract — for personal services.
    Where plaintiff, who with her husband was employed by defendants to act, play and sing at their theatre, on her refusal to play -a certain part which she claimed she was “ artistically unfit ” to perform, was told by one of defendants that she would have to play the part or her contract was broken, the fact that defendants asked her to reconsider the matter did not, as matter of law, constitute a waiver of their right to discharge her.
    Where plaintiff, on going to defendants’ office next day, she having telephoned that she had decided to play the part, was told that she had broken her contract and was discharged, and in an action to recover for breach of the contract of employment the jury were charged, as matter of law, that there was not justification for plaintiff’s discharge, a judgment in her favor will be reversed.
    Bijub, J., dissents.
    Appeal by defendants from a judgment of the City Court of the city of New York, entered upon the verdict of a jury rendered in favor of the plaintiffs.
    Joseph Sapinsky (Alvin T. Sapinsky, of counsel), for appellants.
    Abraham H. Sarasohn, for respondents.
   Seabury, J.

This is an action to recover damages for the alleged breach of a written contract of employment. The plaintiffs are husband and wife, and were-employed by the defendants to act, play and sing at the defendants’ theatre. The facts as found by the jury are as follows: The defendants instructed the plaintiff Raíalo to play the part of the wife in the play called Ikely Mazek.” The plaintiff Raíalo refused to comply with this request on the ground that it would require her to play a mother’s ” part, and that she was “ artistically unfit ” to perform a part of this character, as she was accustomed to perform only prima donna parts.” Upon this refusal one of the defendants told her, You will have to play that part, or your contract is broken.” Upon being confronted with this alternative, the plaintiff testified that she commenced to cry ” and the defendant left the office. In a short time the defendant returned, and said, Listen to me. You think the matter over and consider it, and do me a favor and play the part.” This interview the plaintiff claims occurred on Sunday, December tenth. On Sunday evening she telephoned to defendant that she had decided to accommodate him and play the part. The defendant told her to come to his office at noon on the following day. On the following day she went to the defendant’s office, and the defendant said: You have broken your contract, and you are discharged.” The learned court below charged the jury as a matter of law that if, before the defendant discharged the plaintiff, the latter reconsidered her refusal to play the part assigned to her, there was no justification for her discharge by the defendants. There is no doubt, under the contract under which the plaintiff was employed, that the defendants had the right to require her to play the part which they assigned to her. Nor is there any doubt that her refusal to comply with this request was an act of disobedience which would have justified her discharge. It is claimed, however, on behalf of the respondent that the fact that the defendants asked the plaintiff to rpconsider her refusal, and that she did reconsider and offered to comply with the defendants’ request before she was discharged, was, as a matter of law, a waiver of the right to discharge her and a condonation of her breach of contract. We do not think that this is the correct rule. ■. The fact that, instead of discharging the plaintiff immediately upon her refusal to comply with their order, the defendants endeavored to persuade her to do so, and asked her to reconsider her refusal, did not, as a matter of law, constitute a waiver of the right to discharge her. The fact, that an employer continues an employee in his employ after cause for discharge exists, is not, as a matter of law, a waiver of the right to discharge him. Gray v. Shepard, 147 N. Y. 177, 183; Jerome v. Queen City Cycle Co., 163 id. 351; Rosback v. Sackett & Wilhelms Co., 134 App. Div. 130; Huntington v. Claflin, 10 Bosw. 262. Whether the plaintiff’s breach of contract was condoned by the defendants was a question of fact for the jury to determine under all the circumstances of the case. It was, therefore, error for the court below to predicate condonation as a matter of law upon the fact that the defendants urged the plaintiff to reconsider her refusal to obey a lawful order given to her.

In Wood on Master and Servant (§ 123) it is said: The question as to whether the master has waived a breach of contract by the servant, by retaining him in service after knowledge of such breach, is a question of fact for the jury.”

In Dunkell v. Simons, 15 Daly, 352, Van Hoesen, J., writing for the G-eneral Term of the Court of Common Pleas, said: It is for the jury and not for the court to determine whether or not the defendant had pardoned and condoned the offense of drunkenness; and the court should tell the jury that it did not follow that the offense was condoned because the employer did not discharge the clerk on the spot; that there must be evidence of condonation, and that the circumstances must show that the employer had forgiven the clerk and that the delay of the employer in discharging him was owing to forgiveness of the delinquency, and not for any other good reason.”

In Rosback v. Sackett & Wilhelms Co., supra, it was held that the fact that the master continued to employ a servant for four or five weeks after he finished certain defective work was not, as a matter of law, a waiver of the right to discharge him.

As the charge of the learned court below withdrew the issue of condonation from the jury, there must be a new trial.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

Gerard, J., concurs. •

Bijur, J. (dissenting).

The main point raised on this appeal is that the learned trial judge charged the jury as follows: “If the proof in the case satisfies you that, prior to the time she was notified that she had been discharged, these defendants were assuring her ■that she might reconsider her determination not to play the particular part assigned to her, she would then be justified up to that time in refusing to take up the part. When the direction became imperative that she should assume the part and if, before they had discharged her, she had agreed to assume it, even if it were distasteful to her, there would not be justification after that time for a discharge.”

It is urged by appellants, and I think correctly, that this amounted to a charge that if, upon plaintiff Rafale’s refusal to play the particular part, she was asked to reconsider her refusal and thereupon agreed to play the part before she was discharged, the, discharge was, as a matter of law, unjustifiable. The appellants’ contention is that the question whether the opportunity offered by appellants to plaintiff Raíalo to reconsider her refusal constituted a waiver was a question of fact for the jury and not one of law to be determined by the court.

Appellants cite a number of cases which, they claim, hold that the retention of an employee after the commission of an offense is not a condonation as a matter of law, but raises a question of fact for the consideration of the jury. It is true that, as cited in the opinion of Mr. Justice Seabury, the rule is so expressed in Dunkell v. Simons; 15 Daly, 352, but that case cites no authority for its decision, nor has it ever been cited. The same principle is expressed in Rosbach v. Sackett & Wilhelms Co., 134 App. Div. 130. In that case it was held error for the court to have charged: “ The fact that the defendant retained plaintiff in its employ four or five weeks after the completion of this alleged defective work was a waiver of the right to discharge him because this work was defective.” The learned court says: This was not an absolute waiver, as matter of law (Gray v. Shepard, 147 N. Y. 177; Jerome v. Queen City Cycle Co., 163 id. 351; Dunkell v. Simons, 15 Daly, 352) so that the defendant was precluded from explaining delay that otherwise might be sufficient to establish a waiver.” As to the point thus decided, it is significant that, in a dissenting memorandum, Hirschberg, P. J., points out that the defendant in that case was not precluded from offering proof to excuse or explain the plaintiff’s retention after the defective work, and in fact made no attempt to offer such proof. This dissent intimates what I regard as the correct rule, namely, that if the employer explains the continuance in employment after a breach by the employer, the question whether such continuance constitutes a waiver or condonation becomes one for the jury, but if unexplained it must, as matter of law, be taken as such condonation. Strange to say the two cases in the Court of Appeals, cited in the Bosbach case as authority for the rule there enunciated, do not sustain the proposition; but, on the contrary, by plain inference intimate the opposite rule. Thus, in the leading case of Gray v. Shepard, 147 N. Y. 177, the law is laid down in these significant words: u The master may overlook breaches of duty in the servant, hoping for reformation; but, if he is disappointed and the servant continues Ms course of unfaithfulness, he may act, in view of his whole course of conduct, in determining whether the contract of employment should be terminated.” In the Jerome case, 163 N. Y. 351, 359, the court says: ‘ ‘ The master by retaining him after knowledge of these breaches of duty did not prevent their use as grounds of discharge, when the offense was repeated,” citing Gray v. Shepard. The very case from which the brief of appellants’ counsel quotes a half page, Sabin v. Kendrick, 58 App. Div. 108, 111, expresses the principle as contrary to that which appellants claim thus: It is quite evident that, so far as there was a violation of orders by the plaintiff upon the first trip, such violation was condoned by the defendant, for, after a full consideration and upon knowledge of all the facts, he continued the plaintiff in his employ * * *. Undoubtedly if the offense was committed upon the second trip * * * which it is clear was condoned, and if no other offense was committed in this regard it is equally clear that the first being condoned and no second one committed, the violation of duty could not be made the basis for a discharge.”

It seems to me, however, that in the case at bar we may go still further. It is not so much a question whether a breach of the contract by the plaintiff, Rafalo, was condoned by her retention in defendants’ employ, but rather, taking the testimony of the plaintiff Rafalo, which manifestly was believed by the jury as stating the true facts, it may well be said that there never was an actionable refusal. It is true that in the first instance when one of the defendants asked plaintiff Raíalo to play a particular part, she protested that it would hurt her standing in the profession, and declined to take it; but in a continuance of the same conversation the same defendant said: Listen to me. You think the matter over and consider it" and do me a favor and play the part,” and thereupon, as is conceded, plaintiff did reconsider her refusal and agreed to play the part. At the most then, there was a preliminary refusal' by plaintiff Rafalo, which defendants refused to accept, and the' interview considered as a whole amounted to nothing more than a request to plaintiff Rafalo to play this particular role, notwithstanding her reluctance. It would, no doubt, have been proper for the court to have instructed the jury that the plaintiff Rafalo must have announced her reconsideration and acceptance within a reasonable time, but no request to that effect was made and the point cannot now, therefore, be raised. Moreover, plaintiff Rafalo informed the defendant of her acceptance within less than twelve hours thereafter. I cannot, therefore, find any error in the charge of the learned court below in this respect to warrapt a reversal of the judgment.

Two other points raised by the appellants remain to be considered. It is claimed that it was error on the part of the learned trial judge to admit into evidence a letter written by defendants to plaintiff’s husband just prior to the signing of the contract involved in this case in which they said: ' “ You understand very well we do not engage your wife for mother parts or soubrette parts.” The admission of this letter into evidence was objected to on the ground that it was merged in the written contract, as also that it tended to vary the terms of a written contract. The contract required the plaintiffs “ to perform such roles as may be allotted to them or either of them ” by the defendants. I do not think that this letter was admissible under any accepted rule of evidence. See Kennedy v. Porter, 109 N. Y. 526, 544; Petrie v. Trustee of Hamilton College, 158 id. 458, 464; Lossing v. Cushman, 195 id. 386.

It is plain that the contention that the part which plaintiff Bafalo refused to play was inappropriate to her was substantially abandoned during the trial and that defendants’ proof to that effect was uncontradicted. This is substantially conceded.in appellants’ brief. Indeed, the learned court below charged: “If she were discharged prior to an acceptance by her of this part which was duly assigned to her by these defendants, then she cannot recover, even though there was a continuance of employment provided for in the contract, because it was a justifiable act on the part of the. defendants in dismissing her from their employ for the failure to perform the part in the play which was assigned.” Appellants claim, however, that the question raised by this letter “ was uppermost in the mind óf at least one juror ” as evidenced by a colloquy between him and one of the defendants while on the stand. A reference, however, to the record shows that the colloquy referred to occurred at folio 178, while the letter was not admitted into evidence until folio 190.

Finally, appellants claim that error was committed by the trial judge in excluding a letter by one G-lick-man, a manager in Chicago, offering plaintiffs employment in Chicago. There is no doubt that plaintiffs were bound to endeavor to minimize the damage after their discharge by seeking employment of the same general nature elsewhere. The burden, however, of proving that such employment could, have been found by reasonable endeavor, or was offered and refused, lay upon the defendants. Howard v. Daly, 61 N. Y. 371, 377; Allen v. Glen Creamery Co., 101 App. Div. 306; Milage v. Woodward, 186 N. Y. 252, 257-258. The burden thus resting upon the defendants, however, is not to be sustained by merely offering in evidence a letter from the alleged proposed employer without any offer to show that the employment was of the same general character or that the proposed employer was responsible. Moreover, as to this point, also, it must, I think, in justice to the plaintiffs, be said that no serious effort was made by defendants to substantiate their contention that plaintiffs declined appropriate employment, and, in view of the whole record, this point cannot, in my opinion, be held available to justify a reversal.

I believe, therefore, that the judgment should be affirmed.

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