
    Otis L. Remington, Respondent, v. Edward H. Van Ingen et al., Appellants.
    (New York Common Pleas — General Term,
    June, 1894.)
    In ail interview several days before his employment by defendants the plaintiff stated that he was in good standing with the firm which then employed him; that it was entirely satisfied with him, and that he could continue in its employ if he so desired. At that time he had been in the employ of said firm for three years; his salary had been voluntarily increased from time to time, and no expression of dissatisfaction had been made. When he notified said firm of his intention to leave, after receiving defendants’ offer, he was told that it was as well he did so, as the firm was dissatisfied with him and was about to discharge him. Held, that plaintiff’s statements could not be considered as fraudulent misrepresentations, or his failure to communicate such remark of his former employer a fraud upon the defendants, which would justify a rescission of the contract of employment.
    Appeal from a judgment of the General Term of the City Court of New York, which affirmed a judgment at trial term rendered upon a verdict for the plaintiff which was directed by the court.
    Action to recover damages for defendants’ breach of a contract for plaintiff’s employment.
    
      Otto Horwitz, for respondent.
    
      Walter S. Logan, for appellants.
   Bischoff, J.

The plaintiff sued to recover for the defendants’ breach of a contract to employ him from September 15, 1892, to the next succeeding first day of January, at an annual salary of $1,300, and the defenses, besides a denial that any such contract was in fact entered into, were that the contract was induced by misrepresentations on the part of the plaintiff for which it was subsequently rescinded; that the plaintiff was guilty of conduct which justified the defendants’ refusal to take him into their employ, and an accord and satisfaction. On the trial the plaintiff testified that the difference between his earnings subsequent to the defendants’ breach and the agreed salary was $209.54, which was not disputed, the defendants’ counsel assenting that the plaintiff was entitled to recover thatamount, if at all. When both sides rested the trial court directed a verdict for the plaintiff, to which direction the defendants’ counsel duly excepted. The propriety and correctness of the direction are assailed on this appeal.

That the contract of employment was concluded by the plaintiff’s letter of September thirteenth, accepting the defendants’ proposition contained in their letter of the tenth to commence the employment on the fifteenth, is, in the light of the plaintiff’s testimony concerning, his interview on the sixth with the defendant Edward H. Van Ingen, corroborated as it is by the latter’s testimony, so apparent that to recapitulate the facts in evidence would be a task of mere supererogation. The defense also of an accord and satisfaction was without any support and substantially abandoned. The only actual contention was concerning the plaintiff’s representations to the defendant Edward H. Van Ingen on September sixth, relying upon the truth of which the defendants claimed that they were induced to enter into the contract of employment, and for the alleged falsity of which representations they urged that they were justified in refusing to receive the plaintiff as an employee at the time agreed.

At the time of the interview alluded to the plaintiff was in the employ of Macullar, Parker & Co. of Boston, and, answering the inquiries of the defendant Edward H. Van Ingen, lie stated that he was in good standing with his employers ; that they were entirely satisfied with him and his work, and that he could continue in their employ if he so desired. It is in evidence, from the testimony of witnesses called for the defendants and unchallenged, that at the time plaintiff made the representations he had been in the employ of Macullar, Parker & Co. for about three years, during which period his salary had been from time to time voluntarily increased by his employers, and up to which time no expression of dissatisfaction had been uttered by the latter, nor their intention to discharge the plaintiff from their employ intimated to him. Assuredly, under such circumstances, the plaintiff’s representation cannot be regarded as more than the mere expression of an opinion of his employers’ regard for him. Assuming, however, that the misrepresentation by a person of his opinion is the misrepresentation of a fact, subjectively so, it still remained for the defendants to show that the plaintiff at the time of the interview knew or had reasons for knowing that the regard of his employers for him was not such as lie stated that lie believed it to be, and so, that the opinion or belief expressed was uttered in bad faith, and with the intention to mislead. Not only is the record destitute of everything to that effect, but the fact that ample opportunity was afforded the defendants for inquiry of Macullar, Parker & Co., before the contract with the plaintiff was concluded, is evidence, inf erentially,- to the contrary.

On September tenth, when the plaintiff communicated his intention to Macullar, Parker & Co. that he was about to leave their employ, a representative of that firm replied that it was well he did so, as the firm had been dissatisfied with the plaintiff for sometime, and were about to discharge him. Plaintiff testified that this occurred after he had written and mailed his letter of the same day apprising the defendants that he would present himself for duty on the fifteenth. We will, however, assume that it may be fairly inferred from the evidence that the occurrence alluded to was before the letter-was mailed. It is claimed for the defendants that the failure to communicate the occurrence, and the acceptance of their proposition to employ him with knowledge of the occurrence, was a fraud by the plaintiff upon them. We do not think that the facts may be so regarded. Notwithstanding the remarks of Maeullar, Parker & Oo.’s representative, and for aught that appears, it was still the plaintiff’s honest opinion that but for his voluntary departure from Maeullar, Parker & Oo.’s employ he could have continued therein.

Next, it was contended for defendants that there was evidence tending to show that shortly before his severing connection with Maeullar, Parker & Co. the plaintiff, while on business for his firm, had been in “ bad company ” at Cleveland, Ohio, and that, fearing the fact would come to the knowledge of his employers, in which event he would suffer discharge from employ, he anticipated the discharge by resigning, after securing employment with the defendants, and, therefore, that when he represented it to he his opinion that he could continue in the employ of Maeullar, Parker & Oo. if he so desired, he knew the representation to be false, and misrepresented his opinion or belief. ■ What was meant, however, by the “ bad company ” into which the plaintiff had fallen was left wholly to conjecture. It nowhere appears that the plaintiff was at fault, or that he was guilty of indiscretion, or worse. Hence, there was no evidence from which it could have been reasonably inferred that. the plaintiff’s conduct, on the occasion referred to, was such that because of it he might fairly have been apprehensive of his employers’ displeasure after they had ascertained the facts, or of his discharge from their employ.

Upon the evidence, therefore, we are of the opinion that the case was properly disposed of by the trial justice, and' as no other exceptions are urged for reversal the judgments at general and’ trial terms of the court below should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.

Judgment affirmed, with costs.  