
    Forsyth v. McKinney et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    February 4, 1890.)
    1. Master and Servant—Discharge—Violation of Rules.
    In an action by a servant for breach of a contract of hiring, it appeared th'at plaintiff knowingly broke a rule that employes should not smoke in the shop, and that when remonstrated with he left the shop, in working hours, to finish his smoke. Held, that such violation gave defendants a right to discharge him, and that it was error for the court to qualify this by saying, “if the violation was of that character as to amount to a sufficient justification. ”
    
      2. Same—Insolence of Servant.
    It is a breach of contract of hiring for a servant, while engaged in his employment, to act insolently towards his master’s foreman, where there has been no provocation; and it is error for the court to leave it to the jury to say whether the insolence was sufficient to justify a discharge.
    Appeal from circuit court, Albany county.
    Action by David Forsyth against James McKinney and Edward McKinney for breach of contract. Defendants appeal from a judgment entered on a verdict for plaintiff, and from an order denying defendants’ motion for a new trial.
    Argued before Learned, P. J., and Landon and Fish, JJ.
    
      Marcus T. Hun, for appellants. T. J. Van Alstyne, for respondent.
   Learned, P. J.

This action is brought to recover damages for breach of an alleged contract between the parties. The plaintiff claims that by that contract he agreed to work for defendants for one year from the 19th day of September, 1885, at the rate of $2.75 per day; that under this contract he proceeded to work till the 30th day of October in that year, when he was wrongfully discharged by defendants. The claim of the plaintiff to establish this contract is that about September 19, 1881, he contracted with defendants (or with one of them then carrying on the business) to work for them for one year at that price; that after that year was ended he continued to work with said defendants (or that one of them) until the time of his discharge. He claims, therefore, that his continuing to work for them after the end of each year formed a new contract, to continue also for a year. The learned justice who tried the case, as we understand, took this view of the law; and we cannot see that the defendants excepted to it in any way. While, therefore, we are not prepared to hold that view correct, we feel precluded from examining it, inasmuch as it seems to have been accepted on the trial as correct by the defendants, although they argue against it in their points. The defendants further claim that the original contract was made solely with James McKinney, and that Edward McKinney was not then a partner, but became such subsequently. Ho point, however, seems to have been made as to this on the trial. It would be a fair presumption for the jury to infer that when Edward McKinney became a member of the firm he accepted all existing contracts.

The remaining question relates to the plaintiff’s discharge. The defendants claim that he was discharged for improper conduct, and disobedience to the rules of the shop. It was claimed by defendants that plaintiff disobeyed the rules of the shop, and also that he was insolent to the foreman. The defendant asked the court to charge: “If the plaintiff violated the rules of the shop of McKinney & Son, Mr. McKinney had a right to discharge him from his employment.” The court qualified this by saying, “if the violation was of that character as to amount to a sufficient justification.” How, in understanding this request of defendants, we must notice that the plaintiff had testified that there were certain rules adopted in the shop; that there was a card, “Ho smoking allowed;” that he did smoke, and violated the rule in working hours; that when remonstrated with by the foreman he went out of the shop, and finished his cigar. It is the right of the employer to establish rules. If a workman, oh seeing these rules, is dissatisfied with them, he need not accept the employment. If he accepts it, however, he must obey the rules. If he disobeys the rules, he breaks his part of the contract, because it is a part of his contract to obey them. The plaintiff in this case is not suing tó recover for work which he has performed. He is suing for a breach of the alleged contract to employ him for a year. He must then show that he has performed his part of the contract. If he has broken his side, he cannot compel the defendants to keep theirs, or recover damages if they do not continue to observe a contract which he has broken. The qualification which the learned justice added, left it to the jury to say whether the violation was sufficient to justify the defendants. Perhaps an unintentional or accidental violation of a rule might be held not to be within the fair meaning of the rule itself. But no such question was in the case. The plaintiff must have known he was violating the rule. He did not even lay aside his cigar when the foreman spoke to him, but he went out of the shop, in working hours, to finish his cigar; thus evidently adding another fault to that which he had committed. We think the defendants were entitled to the charge they asked.

They'also requested the court to charge that if the plaintiff acted insolently to the foreman, while engaged, in his employment, defendants had a right to discharge him. The learned justice left it to the jury to say whether the insolence was sufficient. Perhaps on the testimony it might have been a question whether or not plaintiff did act insolently, although we should think there could be little doubt of that. But if he did act insolently he broke an■other part of his contract,—a part as binding as if it had been expressed. It certainly can never be the duty of an employer to retain an employe who acts insolently to one who represents the employer. We do not mean by this that the foreman himself has any right to act insolently to an employe, nothing of that kind occurred in this case. But we do mean that insolent conduct towards an employer, or towards one who represents him, is a breach of the duty which the employe owes; at least, where the employer or he who represents him has given no provocation. Where provocation has been given, then, probably, the circumstances should be left to the jury to say whether the provocation justified or excused the insolence; and the employe cannot justly complain if for that reason the employer puts an end on his part to the employment. The court, we think, by these qualifications to the defendants’ request, left it to the jury to say how much the plaintiff might break the contract on his part, and yet hold the defendants to its performance. This, we think, was incorrect; since the party who breaks a contract himself cannot, as a general rule, have damages against the other party for a subsequent failure to perform based on such breach. The judgment and order should be ■reversed, and a new trial granted. Costs to abide the event.

Fish, J.

While concurring in the opinion of Justice Learned, and in the result he arrives at, it seems fit to add that the evidence was sufficiently clear that the plaintiff violated a substantial regulation of the defendants’ shop; ■and that he was so insolent and offensive towards Myers, the defendants’ foreman, as to justify Ms discharge by defendants; and so, as it might well be held as matter of law that the recovery was wrong, a direction to the jury to find a verdict for defendants would have been very proper.

Landon, J.

The refusal to charge as requested implied that the master •ought to bear with some insolence from his servant. This will not do, unless ■the master has given his servant provocation. If he has, then I think the circumstances may be left to the jury to determine whether the provocation justified or excused the servant. With this qualification, or rather addition, to the above opinion, I concur in it.  