
    Septimus W. Granger, Respondent, v. The American Brewing Co., Appellant.
    (Supreme Court, Appellate Term,
    January, 1899.)
    Services — Contract terminable by either party and not for one year — Discharge.
    A contract by a brewing corporation to employ a person as superintendent, “ at a salary of $5,000 per year, from May 1, 1894,” is not a contract to employ him for one year but is terminable at any time at the election of either party, and where the president of the corporation tells the person that there is no use of his spending his time in coming to the brewery and that he need not come there any more, he cannot recover for services which he thereafter offered, but( was not permitted, to perform.
    Granger v. American Brewing Co., 25 Misc. Rep. 302, reversed.
    Appeal by the defendant from an. affirmance, by the General Term of the City Court of New York, of a judgment entered upon the direction of a verdict in favor of the plaintiff at Trial Term. The nature of the action and the material facts are stated in the opinion.
    Ullo, Ruebsamen, Cochran & Baldwin (Lorenzo Ullo, of counsel), for appellant.
    Deyo, Duer & Bauerdorf (Robert E. Deyo, of counsel), for respondent.
   Giegerich, J.

Alleging his employment by the defendant for a year from May 1, 1894, at an agreed salary of $5,000, the plaintiff sued for, and has recovered, damages measured hy the proportion of the salary for three months, the complaint having proceeded upon the defendant’s refusal to permit him to perform services after February 1, 1895.

The contract of employment was in evidence, in the form of a resolution adopted by the defendant’s directors, as follows: “A motion was made by F. J. Schnugg to engage Mr. S. W. Granger, as superintendent of the American Brewing Company at a salary of $5,000 per year, from May 1, 1894. This motion was seconded by Mr. Hammerschlag, and carried, all Ayes.”

Standing by itself, this agreement was not for a year, but stated an employment which was terminable at the election of either party (Martin v. New York life Ins. Co., 148 N. Y. 117,121), and there is no evidence in the record which extends the terms of the writing, since, while the plaintiff invokes the by-laws of the defendant in aid of his assertion that the directors had the power and might be assumed to have engaged him for a year, if the by-laws and the resolutions were read together, the by-laws are not in the case, having been stricken from the evidence at the plaintiff’s own instance.

Our attention is called to the plaintiff’s testimony that he stated to an officer of the defendant, when his resignation was asked for at the end of January, 1895, that he “was engaged for a year,” but clearly testimony of the party’s own declaration as to his construction of the express agreement was not evidence of the agreement itself, and the terms of the employment were not made the subject of any further proof.

The defense was that, by force of the defendant’s by-laws, the employment was terminated, ipso facto, by the holding of the annual meeting of the corporation in January, 1895, it being claimed that the by-laws limited the duration of the agreement to the date of the meeting, but the court below ruled that the plaintiff was not chargeable with notice of the by-laws and the defense was held to be untenable. It is apparent that the theory of the pleadings was departed from in order to support a recovery of damages, since the contract for a year, the basis of the action, was not proven, but, even assuming that the defendant waived the variance, still there was a fundamental defect in the plaintiff’s case, and the direction of a verdict in his favor was error.

The proof was not that he performed the contract during the three months in question, but was solely to the effect that he tendered performance and was not allowed to perform, for which, alleged breach of a continmng agreement by the defendant, damages were awarded him.

The prevention of performance was based upon his having acted upon the statement made to him by the defendant’s president that it was no use spending his time coming there (to the brewery), and that he need not come there, and it is readily to be conceded that this would suffice as a prevention by the corporation, if the officer’s acts were within the scope of his agency and so attributable to it. That this was the act of the corporation is the basis of the recovery, yet the contract being terminable at will, the act which totally prevented the employee’s performance was necessarily a termination of the employment by the employer, since it is inconceivable that such a contract may endure after the purported breach. In effect, the prevention is no breach, for there is no right in the employee that the contract shall continue, and no damages can accrue from the failure of an opportunity to perform. Some reliance has been placed by the respondent upon the statement made by the defendant’s counsel, at the trial, in the course of argument upon the nature of the affirmative defense, as follows: “We do not claim we discharged him. There is no such defense, but simply the defense that in the first place there was no hiring for a year, and that we could discharge him anyhow, and at any time.”

Olearly this was no admission that the employment had subsisted, notwithstanding the defendant’s acts, since the statement was only that no formal discharge was considered to be necessary to terminate the relations of the parties to the contract, and, as we have pointed out, the employment was in fact terminated, according to the plaintiff’s proof, without a formal discharge.

It results from the views above expressed that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekmax, P. J., and Gildeksleeve, J., concur.

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