
    George Hannon, App'lt, v. John Moore, Resp't.
    
      (City Court of New York, General Term,
    
    
      Filed April 14, 1893.)
    
    Master and servant—Employment.
    In an action for wrongful discharge, the complaint alleged that plaintiff was employed for a year, while the testimony showed that plaintiff was employed by the foreman at first, and that on plaintiff’s becoming dissatisfied and threatening to leave the foreman, by authority of the superintendent, told him he was emnloyed for a year. On his being laid off he inquired of defendant and claimed to have been employed for a year, and was informed that the discharge was temporary, as times were dull and he would be the first one sent for, and on his remonstrating, was told to get out of the place. Held, that a nonsuit was error; that plaintiff claimed employment through the superintendent of defendant, and the fact that he was superintendent carried with it the implication that he had authority to hire men by the year or otherwise, and was sufficient to authorize the submission to the jury of the question as to his authority to employ plaintiff.
    
      Appeal from a judgment dismissing a complaint of the plaintiff,, and in favor of the defendant, and against the plaintiff for the sum of $69.62 costs.
    
      Johnson & Johnson, for app’lt; Henry W. Unger, for resp’t.
   McGown, J.

The plaintiff in his complaint alleges: First. That on or about the 1st day of April, 1891, the defendant entered into an agreement with him whereby defendant employed him as a first class mechanic or workman in his saddlery and harness business, for the term of one year from April 1, 1891, for which services defendant agreed- to furnish to the plaintiff all the work he could do, and to pay him therefor at stipulated prices at a certain fixed scale, which was mutually-agreed upon, for each piece of work done by plaintiff.

Second. That plaintiff performed his agreement on his part, but. that defendant has not, performed said agreement, in that he has-not furnished plaintiff all the work he could do from on or about September 12, 1891; that he has not paid plaintiff since September 12, 1891, although the same has been duly demanded, and although plaintiff has been always ready and willing, and has tendered his services to the defendant, to his damage in the sum of $500:

The defendant, in his answer, denies each and every allegation of the complaint.

The plaintiff testified that he applied at defendant’s place of business in Warren street for work in March, 1891, and saw defendant’s superintendent, Cyrus Beasley; that he worked for defendant until he was offered coach harness, and was working by the piece then ; that when he applied for work he saw the superintendent, who called the foreman, Mr. Acker, who stated that he, the superintendent, would not undertake to hire him himself, not being a harness maker ; that Acker, the foreman, asked him-(plaintiff) where he had worked, and what quality of work he could do; that Acker, the foreman, told him that he (plaintiff)' was the man he wanted; and to go to work: that he worked there three weeks or a month, when he heard it was not going to-be a permanent job; that he got an offer for a permanent job, and that the foreman (Acker),' bad given him two sets of harness-to make; that he told Acker that he would not take it, because he heard that this job was not to be permanent, but that if he (plaintiff) could get a permanent job, then he would stay; that he (Acker), said : “ Wait a little, and I will go down and see about it;” that Acker went down stairs, and came back and said: “ That is all1 right, you are employed'here for a year; ” that he worked up to the first or second week in September following; that this conversation between himself and Acker, the foreman, was in the first week in April; that in the second week in September, Acker (the foreman) told him that some of the people had been laid off, and when he (plaintiff) had his job done, that he (plaintiff) was laid off also, and that there was no more work for him; that he (plaintiff) then went down and saw the defendant himself, and said to him: “ How is this, Mr. Moore, you are breaking your contract with me; I have been hired for a year here, but I am •discharged; ” that defendant then said : This is only temporary, things are very dull and you will be the very 'first one I will send ■for; ” that his average earnings per week while he worked for defendant amounted to from fifteen dollars to twenty-one dollars per week; that when he protested with defendant about the contract, defendant said: “ I won’t be contradicted, you get out of the place.”

Levi J. Acker, a witness on the part of the plaintiff, testified, that in the month of March, 1891, he was foreman of. the defendant ; that he had authority to employ men ; that he employed the plaintiff for a year.

On cross-examination, he testified that he was never, in any way, shape or form, authorized for the defendant to engage anybody for the defendant for the year, except through the superintendant, Mr. Beasley; through whom he promised plaintiff work for the year round.

That plaintiff was going to leave the firm, and told him' that he was going to get work for a year with another firm; and that “ he went and saw Mr. Beasley (the superintendent) and told him ; and that he (Beasley) said, if the man suits you, you can tell him he can have work for the year round. He said to me, that he could have work for the year round; and I told him (plaintiff) afterwards, that he would have work there for the year round.

Plaintiff having rested, defendant’s counsel moved to dismiss •on the following grounds:

“ Defendant’s counsel: I move for a dismissal of the complaint upon the ground:

“First. That no employment of the plaintiff as recited in the complaint has been shown. The evidence of the plaintiff distinctly shows that he was to be employed if he were found suitable.

“Second. There is nothing in the evidence to show that even if ■such a contract was made, that it was made, by the authority of the defendant.

“ The Court: I grant the motion to dismiss the complaint upon the grounds that there is no evidence of a contract between the plaintiff and defendant, as testified to by the foreman, Mr. Acker; and, further, upon the evidence of the plaintiff himself, which shows that this employment was made through a servant of Mr. Moore, the plaintiff contending that this servant who made the contract had the right to make it for one year. There is no evidence tending to show that the person who made the contract had ■a right to make it for a period of one year, and as the contract was made through an agent, the familiar principle of law is applicable to this case, namely, that the authority of the agent must be shown, of' which there is no evidence in this case. Therefore, I dismiss the complaint.

“ Plaintiff’s counsel excepts.”

The trial justice, in granting defendant’s motion to dismiss, fully and clearly stated the grounds upon which he granted the motion, and it will not be necessary for the purposes of the appeal herein to review any other questions except those raised by the Opinion of the trial justice, and stated by him as his reasons for granting the motion.

It was error on the part of the trial justice in dismissing the complaint, and we think he should have allowed the plaintiff to go to the jury upon the evidence produced by him.

In Ernst v. Hudson River R. R. Co., 35 N. Y., at page 25, Porter, J., says: “In determining the propriety of a nonsuit, we are legally bound to assume the truth of the facts which the testimony of the plaintiff legitimately conduced to prove, though their correctness was controverted by the defendant’s witnesses. It is the appropriate province of a jury to deduce inferences of fact and to weigh doubtful or conflicting evidence.”

Plaintiff claims employment through Mr. Beasley, the superintendent, and not through Acker, the foreman. There is no dispute as to the fact of Beasley being the superintendent of defendant; and the fact that he was the superintendent carried with it the necessary implication, throwing the burden upon the defendant to disprove the same, that he had authority in the premises to hire men by the year, or otherwise, as he saw fit, and this circumstance was sufficient to authorize the submission to the jury of the question as to the authority of the superintendent to employ the plaintiff. See Manning v. Hogan, 78 N. Y., 616.

When plaintiff, as testified to by him, said to the defendant:

“ How is this, Mr. Moore, you are breaking your contract with me; I have been hired for a year here, but Í am discharged," he (defendant) said: “ This is only temporary, things are very dull, and you will be the very first we will send forand when ' plaintiff protested with defendant about the contract, defendant said: “I won’t be contradicted; you get out of the place.” Defendant did not deny the employment or claim that his superintendent, Beasley, had no authority to make such contract of employment, and it might fairly have been claimed that the omission of the defendant to deny or disclaim any such authority was very strong evidence of its existence, and, taken in connection with other circumstances of the case, it would have amply sufficed for the finding by the jury of the existence of such authority. See Warburton v. Camp, 112 N. Y., 684; 21 St. Rep., 853.

The plaintiff on the evidence presented by him had made out a prima facie case, and one which he was entitled to have a jury pass upon.

A similar question arose, and was passed upon by the general term of the supreme court, third department, in Cox v. Albany Brewing Co., 24 St. Rep., 942.

Cox, the plaintiff, claimed damages for breach of contract for plaintiff’s personal services for one year. He served ten -weeks and one day, and was then discharged, being paid up in full for the term of his actual services.

Cox, the plaintiff, went to defendant’s brewery and into the office of the defendant, and found one William Gray there behind the counter alone, apparently in charge. Gray asked him to come to work on Monday following. Rowe, the defendant’s superintedent, came in, and also asked him to come. Plaintiff went there Monday. morning, and Gray asked him to go to the malt house and work there a week, and help the maltster show the green hands how to work the malt. Cox at first refused to work at the malt house, and left the office. Gray followed him out, and said: “ Cox, if you will come down to the malt house for two or three days, and help Farrell show the green hands how to do the work, I will guarantee you a year’s work at two dollars per day.’’ Cox said: “I will work until Saturday night, and come back Monday."’ He then went to the malt house and worked there until Saturday night, came back on Monday morning following, when Gray directed him to go to the shipping room, which he did, and worked there under the direction of defendant’s superintendent for nine weeks and one day.

Gray then directed him to go to the office and get his pay, and he did so. He then went on the following morning to apply for work and said to Gray: “ How is it that you hired me for a year?” And Gray told him to get out of the office and not come any more, and added: “I suppose you mean to take suit against me.”

Landon, J., in his opinion says: “ The plaintiff was non-suited. He is, therefore, entitled to the most favorable inferences of which the testimony admits. He dealt with the person whom the defendant permitted to be its representative in its dealings with the plaintiff, from and including the time of his employment * * *

and with and including his payment and discharge. As between the parties, Gray was the ostensible agent of defendant, and clothed with all the power he assumed to exercise. Besides, there is no intimation in the evidence that his real power was not as ample as his ostensible. The jury might have found that the defendant did employ the plaintiff for one year at two dollars a day.”

The judgment was reversed.

Learned, P. J., and Ingalls, J., concurred.

The case came up again before the court on the appeal from a judgment in the plaintiff’s favor on the new trial ordered. See 31 St. Rep., 666.

Maynard, J., in his opinion, at page 667 : “It is well settled and elementary rule of law, that a special agent, with limited powers, cannot bind the principal where he acts outside of the scope of his authority ; but that rule is subject to this qualification, that when an agent is intrusted to do a particular kind of business he becomes, as between the principal and parties dealing with him, the general agent for the transaction of that business; and his acts, as between his principal and strangers, in that particular line, will bind the principal although he violates some private instructions given by his principal, not known to the public. See also Schmerenbeck v. Funke, 45 St. Rep., 30; Benesch v. John Hancock Mt. Life Ins. Co., 16 Daly, 394; 34 St. Rep., 16; Fuld v. Burr Brewing Co., 45 id., 650, common pleas, general term.

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Yan Wyck, J., concurs.  