
    Jay Connell, Respondent, v. Charles S. Averill and George F. Gregory, Appellants.
    
      Master and servant—wrongful discharge—refusal of sei'mnt to accept similar employment because of physical disability—proof of custom.
    
    In an action brought by a party who had been the head porter of a hotel to recover damages for his alleged wrongful discharge from that position, it appeared that after the plaintiff had been discharged and left his position, the defendants offered to employ him as house porter, whose duty it was to carry-heavy trunks, while the head porter drove the hotel omnibus and solicited passengers at the depot; the plaintiff objected to taking the position of house porter as he was suffering from hernia. The trial judge charged the jury that they might take into consideration, upon the question of damages, the offer of the appellants, the refusal of the respondent, and his explanation of the refusal.
    
      Held, that a proper disposition was made of this branch of the case.
    The defendants offered to show, upon the main issue, whether he was hired for the term of one year or merely by the month for an indefinite period, the existence of a custom in Syracuse, relative to the terms upon which porters were hired in hotels in that city, but the court refused to admit this evidence. Held, that since the contract as stated by both parties was clear and unambiguous as to the term of service, evidence showing the custom and usage in such cases was inadmissible.
    The rule of law, where a servant is wrongfully discharged, is that he must make reasonable efforts to obtain other employment, even if it be not exactly of the same kind or at the same salary; but he is not bound to accept employment of a different character.
    Appeal by tbe defendants, Charles S. Averill and another, from' a judgment of tlie County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 4tli day of December, 1895, upon the verdict of a jury rendered after a trial before the court and a jury, and also from an order bearing date the 27tli day of November, 1895, and entered in said clerk’s office, denying the defendants’ motion for a new trial upon the minutes.
    
      M. E. Driscoll, for the respondent.
    
      Arthur Beebe, for the appellants.
   Green, J.:

The appellants are proprietors of the Tates Hotel, in Syracuse. March 2, 1891, the respondent entered the employ of the appellants as train or head porter, and continued in such employ until July tenth of the same year, when the appellants notified him that his services in that position were no longer desired, but that he could continue in their employ as house porter. The respondent refused to accept that position and left the employ of appellants. He received his pay for the time he worked. After such discharge he came to appellants and offered his services, claiming that he had been hired for the term of one year. The appellants refused to allow him to continue in their service in the position he occupied at the time of his discharge. This action is for damages for not being allowed to serve his time and receive his compensation according to the contract as claimed by him. The controlling issue of fact in the case was,, whether the respondent was hired for the term of one year, as he claimed, or only by the month for an indefinite period, as claimed by appellants. The respondent testified that he was employed for the term of one year from the second day of March as head or train porter in the Y ates Hotel, and that he was to receive for such services the sum of twenty dollars per month. He further testified that, when the contract was made, one of the employees of the hotel was within hearing distance of the-conversation between the respondent and the appellant Averill, with whom the contract was made. This employee-was also sworn as a witness in behalf of the respondent, and fully corroborated him as to the terms of the contract. Mr. Averill testified that the employee was not in a position which would enable him to overhear the conversation between Averill and Connell, and that if the employee occupied the position which he testified to occupying at the time of such conversation, the situation and surroundings were such that he could not have heard such conversation. It was agreed upon the trial that the jury should attend in a body at the hotel and examine the situation, location and surroundings of the place where the contract was claimed to have been made, and also the place where the witness testified he was at the time of the conversation, so that the jury might satisfy themselves as to the truth ■or falsity of the evidence of the employee. Before the close of the trial the jury did so view the premises. The defendant Averill, who was the only other person present at the time of the conversation between him and Connell, when Connell claims the contract was made, was sworn in his own behalf concerning that transaction; he testified: “ I had a conversation with Connell about the first or second of March with reference to hiring him. Q. What was that ■convei'sation ? A. Well, it was just about as he stated it.” Upon being further questioned by his attorney and asked to give his version of it, he testified that he asked Connell if he would like the position of head or train porter; that he said he would like it, and 'that he then told Connell the wages would be twenty dollars a month, and as long as he filled the jDOsition satisfactorily he could retain it, and that nothing was said about employment for a year. The defendants also introduced in evidence the receipt given by respondent to appellants for services to August first in full. It will be seen that the respondent was corroborated by a witness who, so far as appears from the record, was.disinterested; and not only that, the jury was allowed to view the premises and thus verify the statement of the witness as to whether he was in a position to hear the ■conversation between Connell and Averill. Upon the evidence and the observation thus made the jury found upon that question in favor of the respondent. The verdict thus rendered upon conflicting evidence should not be disturbed.

The appellants contend that this judgment should not be allowed to stand, as it appears that, at the time of the respondent’s discharge, he was offered another position by the appellants, and that, although the contract was for one year, as contended by the respondent, the appellants having offered him another position, he was bound to ■accept and thus relieve the appellants from any damages occasioned j?y his discharge. If this position so tendered him was of the same general character, and the duties thereof were such as could have been performed by the respondent, it would have been his duty to accept the same, otherwise he would have been precluded from claiming damages under tlie contract. It appears from the evidence in the case that the position tendered him at the time of his discharge was of a more arduous character than the one respondent had occupied. The respondent testified upon that subject, that the house porter was required to lift all the heavy trunks, and that the head or train porter drove the ’bus and solicited passengers at the depots; and it appears from the evidence, uncontradicted, that, at that time, the respondent was suffering from a breach, occasioned by a fall from the omnibus while in the employ of appellants, and that he was unable by reason thereof to perform the duties of the position which was tendered him by the appellants. He further testified: “ I told Mr. Averill I wouldn’t take it, because I was hired for that work, * * * and that I was not able to do the lifting.”

This evidence was properly submitted to the jury by the learned county judge in his charge; the jury was charged that it might take into consideration the offer of the appellants, and the refusal. of the respondent to accept the offer of that position, and his explanation for not accepting it, and that it was for the jury to consider this evidence with the other evidence in the case, as bearing upon the question of damages. I am of the opinion that a proper disposition was made of this branch of the< case.

Upon the trial the appellants produced a witness who testified that he resided at the Globe Hotel in Syracuse, and that he had been a porter in the hotels of "Syracuse for thirteen years; that he took respondent’s place as porter of the Yates Hotel. He was then asked by appellants’ counsel as follows-: “Do you know the custom in Syracuse with reference to the terms of hiring porters at hotels ? ” This was objected to as incompetent, irrelevant and immaterial. The Court: “ I would like to hear from you, gentlemen. I held this morning that the question was admissible to show that they received their board.”- Mr. Driscoll: “1 know you did, just the same as it is customary for a hired girl in the kitchen to receive board when she is working, but it aint admissible to show that they don’t hire men for a year, or that they don’t hire a hired man on a farm for a year, because that, goes right to the contract.”

Mr. Thorne: “ The offer is to show that the common, ordinary custom, or universal custom, 'among hotel porters at that time was that the hiring was by the month and not by the year, and. such a hiring was unheard of.” The Court: Ask your question.” Mr. Thorne: “ Q. 1 ask him if he knows the custom with reference to the term of hiring. Objected to as immaterial, incompetent and irrelevant. Objection sustained; exception by defendants.” The ruling was not error. The vital question of fact between these parties was the term for which the respondent was hired; he contended that the contract was for one year; the appellants that it was only from month to month. The contract, as stated by each of the parties, was clear and explicit as to the term of service. The appellants could not change the terms of an unambiguous contract by showing that the custom was contrary to the clearly expressed intention of the contracting parties. “ When the terms of a contract are clear, unambiguous and valid, they must prevail, and no evidence of custom or usage can be permitted to change them.” (Hopper v. Sage, 112 N. Y. 535 ; Wadsworth v. Allcott,, 6 id. 64; Wheeler v. Newbould, 16 id. 392.)

The appellants’ counsel argues that this evidence .should have been admitted, because the court admitted evidence of a similar character when offered by the respondent, under the appellants’ objection and exception, and that the court was wrong in one instance or the other. There was no exception to the admission of the evidence referred to,, and, therefore, that question cannot be reviewed upon this appeal. Because the court erred in the admission of evidence in one instance during the trial of an action furnishes no valid reason for reversing its decision in excluding incompetent and irrelevant evidence.

A further exception only remains to be considered. The appellants’' counsel asked the court to charge that: “ If the jury shall find that ■ the duties of this position of hall, or inside porter, that was offered to the plaintiff, was of substantially the same character and no more arduous than the position for which he was hired, that, in that case, he cannot recover.”

The Court: “I decline to charge in the words asked Mr. Thorn, but I do charge in answer the language in the case in the 68th of Hun, 172 : ‘The rule of law contended for by the complainant is undoubtedly sound, that when a servant is reasonably discharged, he must make reasonable efforts to obtain other employment, and credit the master with the amount earned by him in reduction of damages. He is not bound to accept employment of a different character, though it need not necessarily be of exactly the same kind, or at the same salary.’ ” Exception by defendants.

We are of the opinion that the court committed no error in this charge. The charge as made is applicable to the case, and clearly covered the subject and the question upon which the court had been called to charge the jury.

The learned counsel, in asking the court to make the charge as he he did, omitted an important fact bearing upon the subject-matter as to which the court was requested to charge, and that was that by the uncontradicted evidence the respondent was unable to perform the duties of the position tendered him ; he also testified that helrad so informed these appellants, and that he gave it as a reason for not accepting that position.

We think the case was presented to the jury fairly and sufficiently favorable to these defendants upon the evidence.

An examination of the exceptions taken by the appellants’ counsel discloses no error which should lead us to disturb the verdict rendered by the jury.

The judgment and order should be affirmed, with costs.

All concurred, except Ward, J., not sitting.

Judgment and order affirmed, with costs.  