
    John A. Stanton, Respondent, v. Erie Railroad Company, Appellant.
    Second Department,
    April 23, 1909.
    Corporation — pleading — defense of ultra vires — railroads — contract to employ plaintiff as engineer construed—rules of construction — submission of construction to jury — waiver.
    The defense of ultra vires is not available to a corporation unless pleaded.
    Where a railroad corporation, in consideration of the withdrawal of an action by a locomotive fireman to recover for personal injuries, makes a written agreement whereby it promises to give the plaintiff employment as an engineer as soon as he becomes physically able and otherwise competent to discharge the duties, and as soon “thereafter as there is a vacancy, and such employment shall continue while the company has work of that character to perform,” and so long as the plaintiff remains physically able and competent to perform such duties, subject to a right of discharge, the railroad does not fulfill its promise merely by putting the promisee on its roll of engineers and delaying his assignment as locomotive engineer until he is entitled to promotion under the rules of the Brotherhood of Locomotive Engineers.
    Having placed the plaintiff on its roll of engineers, the obligation of the railroad to assign him to duty when a vacancy occurred is absolute.
    If the language of a promise may be understood in more senses than one, it is to be interpreted in the sense in which the promisor had reason to believe it was understood by the promisee.
    Although the interpretation of a contract was erroneously submitted to the jury, there is no ground of reversal unless the jury erred in its interpretation.
    
      It seems, however, that the interpretation of the contract aforesaid was properly submitted to the jury, in that it comes under the exception which allows such submission where the interpretation depends upon the sense in which the words are used, or the sense in which the promisor had reason to believe the promisee understood them, so as to be a fact to be determined from the relation of the parties and the surrounding circumstances.
    Evidence examined, and held, to warrant a finding that there had been a vacancy which the plaintiff was entitled to fill as engineer.
    A failure of the plaintiff to furnish any report of his physical examination is waived when he never received any instruction to do so from the railroad, and was put upon the roster as an engineer without objection.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Orange on the 4th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office'on the 7th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry Bacon, for the appellant.
    
      Rosslyn M. Cox [Abram F. Servin with him on the brief], for the respondent.
   Jenks, J.:

This action is for breach of contract. The plaintiff, when a locomotive fireman in the employ of the defendant, was injured, and brought an action for negligence against the defendant. On April 1, 1904, the defendant delivered to the plaintiff the following writing:

“ Erie Eailro'ad Company,
“ Office of the General Manager, Mo. 21 Cortlandt Street,
“ Mew York, April 1, 1904. “Mr. John A. Stanton, Port Jervis, M. Y.:
“ Dear Sib.— In consideration of your withdrawing your action against this company, and your claim growing out of an accident to you on June 17, 1903, upon the payment to you of the sum of Five thousand dollars cash, the Erie Eailroad Company will give you employment as engineer when you become physically able and are otherwise competent and qualified to discharge the duties of that position as required, and as soon thereafter as there is a vacancy, and such employment shall continue while the Company has work of that character to perform, and so long as you remain physically able, competent and otherwise qualified to perform such duties, subject to the right of the Company to discharge you for failure to faithfully perform such duties, to comply with its-rules and regulations or for other misconduct.
“ Yours truly,
“ J. C. STUAET, General Manager.”

A general release was executed by the plaintiff and the $5,000 was paid to him. The plaintiff now' complains that on June 29, 1904, when he was qualified as a locomotive engineer, there was a vacancy, but that the defendant, although requested, neglected and refused to provide him with such employment, and continued in such refusal thereafter although there were numerous vacancies. The defense was a general denial. The plaintiff gained a verdict of $4,500, which was at the rate of $4 a day for 1,125 days.

The defendant appellant makes several points. The question whether the contract was ultra vires was not raised by the pleadings, and, therefore, is not available. (Keating v. American Brewing Co., 62 App. Div. 501; Richmond County Soc. P. C. C. v. City of New York, 73 id. 607.) I think, however, that the contract maybe sustained under our judgment in Usher v. N. Y. C. & H. R. R. R. Co. (76 App. Div. 422; affd., 179 N. Y. 544).

The defendant contends that it has fulfilled its contract. It had a system of employment for firemen and engineers formulated in certain rules and regulations of agreement with the Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive Firemen. This system contemplated promotion of firemen to engineers in regular order from a list made upon the basis of fitness, record and long service. Under it firemen were advanced to engineers, engineers were assigned to duty according to seniority, and from time to time advancements of firemen were made tern-I porarily and reductions of some engineers were made temporarily, according to the volume of the defendant’s business. The plaintiff was a member of the Brotherhood of Locomotive Firemen and knew of this system and of the agreements. The defendant shows that plaintiff was put upon the roll of engineers, but under its system there had not been during the period in question a vacancy whereby he could be employed. This contention necessarily rests upon the proposition that the defendant only undertook to place the plaintiff on its roll as an engineer, and that his employment as an engineer, whereby he gained his pay, was subject to the same rules, regulations and conditions as regulated that of other engineers. In fine, only the status of engineer on the defendant’s roster was assured by this contract. But the obligation of the contract is absolute save with the express conditions that the plaintiff shall become physically able and otherwise competent and qualified. These conditions accentuate the absolute undertaking in that exceptions prove the rule. If the defendant intended by this agreement that the plaintiff should simply have a rating as an engineer with employment as such afforded only by said system, rules, regulations and agreements, .it could readily have used apt words of expression. But it did not use them; on the contrary, its expression is not only that the plaintiff should have a vacancy as soon as it occurred, but also that such employment should continue while there was work of such character to be done, subject only to discharge for misconduct. I think that the plaintiff could thus understand the agreement as complete in itself. The transaction ivas not an ordinary hiring which, involved merely the 'question of wages for work so that it was reasonable that the servant would infer that he was subject to the general system which regulated the service of his fellows, but the contract of employment was extraordinary, made in part con sideration of the servant’s release of a claim against the defendant Moreover, can it not be said that the very agreement itself, even as the defendant would interpret it, is a departure from its system, inasmuch as it affords to one not then an engineer but at best a former fireman, a place on its roll of engineers, irrespective of his eligibility under its system? I think that the jury did not err because it practically found that the defendant ob^ged itself to employ plaintiff whenever there was a vacancy and to continue him in such employment while there was work for an engineer and he demeaned himself well. Jones on the Construction of Contracts [p. 312] well says: “It may also be said that it is reasonable and just to conclude that where one of the parties to a contract, in describing his own obligations, uses language susceptible of more than one interpretation, the person with whom he is contracting will understand this language in the sense which is most favorable to his own interests. And it is proper that the one who occasions such misunderstanding should bear the consequences which flow from it,” and also quotes from Kent’s Commentaries (Yol. 2, p. 55J) as follows: “The true principle of sound ethics is to give the contract the sense in which the person making the promise believed the other party to have accepted it. * * * The modern and more reasonable practice is to give the language its just sense and to search for the precise meaning, and one requisite to give fair effect to the contract without adopting either the rule of a rigid or of an indulgent construction.” While the rule of contra prof erentem is often said to be one of last resort, yet it is well settled “ if the language of a promise may be understood in more senses than one, it is to be interpreted in the sense in which the promisor had reason to believe it was understood.” (See Gillet v. Bank of America, 160 N. Y. 549.) This rule is taken from White v. Hoyt (73 N. Y. 505, 511), which in turn rests upon Hoffman v. Ætna Fire Ins. Co. (32 id. 405), citing among other cases Potter v. Ontario & L. M. Ins. Co. (5 Hill, 149), when the court, per Bronson, J., applied Dr. Raley’s rule in relation to the performance of contracts: “Where the terms of a promise admit of more senses than one, the promise is to be performed in that sense in which the promisor apprehended at the time the promisee received it.” Of course the question is, not what the promisor had in mind at the time, but what he had reason to believe that the promisee would gather from his expression. “ The mere impression or understanding of one of the parties, not communicated to the other, can never justify the inference, that the understanding of the other party was the same, and in order to constitute a contract or agreement, the assent of both parties is requisite.” (Murray v. Bethune, 1 Wend. 196.) Jones (supra, p. 314) also writes: “ And the obligee should have the right to require of the obligor all that a right and natural interpretation of the signs made use of would give him,’ ” citing from Lieber’s Hermeneutics (2d ed., p. 85, n. 5): “ It is the intention of the party that binds him; but what that intention was is to be learned, not from his own assertion or understanding of it, but from the words or signs in which it has been clothed.”

But it is contended that the court erred in submission of the contract to the jury for its interpretation. Even if this were error it would not call for reversal unless the jury erred. (Jones v. De Coursey, 12 App. Div. 172, and cases cited; affd., 161 N. Y. 627.) But I am inclined to think this case is of the class described by Allen, J., writing for the court in White v. Hoyt (supra), where he said that while it is true that the construction of contracts is usually the function of the court and not the jury, yet this is not the invariable rule, and then said : “ When the interpretation depends upon the sense in which words are used, or the sense in which the promisor had reason to believe the promisee understood them, a fact to be determined from the relation of the parties and the surrounding circumstances, it would seem that it becomes a mixed question of law and fact. It is not, then, a matter of interpretation merely, but the ascertainment of the minds and intents of the parties.”

It is further contended that there was not proof of any vacancy which the plaintiff could have filled during the period covered by the complaint. The defendant’s road foreman, Salley, did testify that between July, 1904, and Rovember 13, 1905, and after the plaintiff had passed the examination, there had been no appointments made to the engineers from the firemen sufficient to reach the plaintiff’s name, no men moved up. “ Betxveen those dates there had been no vacancy in the engineers that lie could get, no vacancy to which these firemen could be moved up.” And he further testifies: “The paper which you hand me, which I gave you this morning, shows as per your request, the engineers that left the service of the Erie Railroad Company from any cause from June 1, 19Ó4, to January 1, 1905, on the Rexv York division. Their going did not exactly leave a vacancy in their positions. It did not make a vacancy as there was still enough men on the list to take care of the business. I did not necessarily have to take some other men to put in their place. There xvere men enough on the engineer’s list to take care of the business. Col. Quick when he left his position was known as an extra engineer. I consider there was no vacancy. When Col. Quick left the employment of our company on December 20, 1904, I do not consider that position that he left xvas vacant and we put some other man in. By the Court: Q. When he went away there was a place vacant 1 A. Well, of course, there xvas a vacancy, one man less. • Q. There was a vacancy open for somebody to fill ? A. Yes. * * * I have seen the xvord 6 vacancy ’ in this contract. I answered the questions just as directly as I can. J. S. Reeder left the employ of our company on September 6, 1904. There xvas a vacancy in his position when he left. These several men on this list when they left that created a vacancy in their position.” On the other hand the plaintiff testifies : “ There were engineers after I made this contract discharged, and other engineers employed or firemen promoted. The wages of engineers was $4.00 on a freight engine.”

It is also urged that the plaintiff did not furnish any report of his' physical examination as instructed. But the plaintiff testifies that he never received any such letter of instruction from, the company, and on the other hand it appears that the defendant did not urge this omission upon him or call his attention to it, hut on the contrary put him upon its roster as an engineer.

I advise affirmance of the judgment and order, with costs.

Woodward, G-aynor, Rich and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  