
    Gaston Costet, Respondent, v. Edward E. Jeantet and Emile E. Jeantet, as Executors, etc., of Eugenie R. Jeantet, Deceased, and Emile E. Jeantet, Individually, Appellants.
    
      Master and servant — discharge of the servant for a refusal to attend at the master's store at an hour specified.
    
    Where a traveling salesman’s contract of employment obligates him, when not traveling, to assist in his employer’s store, which opens at seven-thirty o’clock each morning, the refusal of the salesman to attend at the store at eight o’clock on mornings when he was not traveling is, as a matter of law, unreasonable and justifies his discharge.
    In such a case it is improper for the court to allow the jury to determine as a matter of fact whether or not the employer’s command was reasonable.
    Appeal by the defendants, Edward E. Jeantet and another, as executors, etc., of Eugenie R. Jeantet, deceased, and Emile E. Jeantet, individually, from a judgment of the Supreme' Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of March, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of March, 1905, denying the defendants’ motion for a new trial made upon the minutes.
    
      Lemuel Skidmore, for the appellants.
    
      W. Gerald Phlippeau, for the respondent.
   Patterson, J.:

This action was originally begun against Eugenie R. Jeantet and Emile E. Jeantet, as copartners. Mrs. Jeantet died and her' executors were substituted in her place as defendants. The plaintiff in his complaint alleged that Eugenie R. J eantet and her son Emile E. Jeantet were copartners; that on or about the 31st of August, 1900, he entered into an agreement in writing by which they agreed to employ him at a weekly salary of twenty-five dollars, and in addition thereto fifteen per cent of yearly profits realized on business conducted by Mrs. Jeantet and her son under the firm name of “E. Jeantet;” that the plaintiff was to act as traveling salesman for the defendants and also to assist them in their business at the store when not traveling for them ; that the agreement was to go into effect on t-lie 1st day of January, 1901, and to terminate on the 31st day of December, 1902; that the plaintiff entered upon the performance of his contract and remained in the employ of the defendants until the 4th of May, 1901, when he was illegally discharged and the defendants refused to allow him to perform further services under the agreement; that he' duly tendered his services but was notified that they were no longer required, wherefore he demanded judgment for a certain sum of money and for an accounting of the profits. ' Eugenie E. Jeantet, by her separate answer, admitted the employment, but she- did not admit the partnership. As a separate defense she alleged that she was induced to sign the contract with the plaintiff through false and fraudulent representations. • It is sufficient to say, with reference to this defense, that the proof does not sustain it. For a further, separate and distinct defense, she alleged that between the 1st of January, 1901, and May 4, 1901, the plaintiff continually neglected and refused, with-. out any just cause or reason, to fulfill and comply with the terms and conditions of the contract referred to in the complaint and refused and neglected to render the services required of him there-' under. For a further defense, she alleged that during the period indicated, while the plaintiff claims to have rendered services, he was continually disrespectful to her, and refused to obey her Orders and was insolent and impertinent and used abusive language, and repeatedly threatened to assault defendant’s sons, who were employed by her. Emile E. Jeantet in his answer denies the alie-, gations of the complaint and asserts that he did not sign, the contract as a contracting party, but only as a subscribing witness; that he had no interest in the firm and no authority to ‘employ or discharge the plaintiff. The defendant Edward E. Jeantet answered setting up substantially the. same matters as those contained in the answer of his mother. On the death of Mrs. Jeantet the action was reconstructed as above stated and a supplemental complaint was filed- .

On the trial a contract in writing was introduced in evidence, and it appears thereby that it was made between Mrs. E. E. Jeantet and Mr. E. E. Jeantet of the firm of E. Jeantet; and that “Mrs. and Mr. Jeantet agree to' pay to Mr. Oostet a weekly salary of twenty-five dollars, and fifteen per cent on the net profits at the end of each year.” Mr. Oostet being engaged as traveling salesman, all Ms expenses when traveling to be paid by the firm of E. Jeantet. “ When not traveling, Mr. Oostet agrees to report at the store and assist in the work about the same. This present agreement is to be in effect on the first day of January, nineteen hundred and one, and to end on the thirty-first day of December, nineteen hundred and two.” There is then added to the agreement the following : “ Notice of desire to terminate contract by either party shall be given in writing two months previons to said termination (i. <?., on or before the .first of November, 1902).” That, paper is signed by Gaston Oostet, Eugenie E. Jeantet and Emile E. Jeantet. .

At the trial several matters were in contest to which it is not necessary to refer at length. One of them related to Emile E. Jeantet being a member of the firm of E. Jeantet. That issue was submitted to the jury and there_ was evidence to support their finding that Emile E. Jeantet was a copartner. The main issue before the jury, however, was as to the right of the plaintiff to recover in view of the defense interposed of his discharge because of his disobedience and refusal to comply with reasonable requirements of the defendants. It was provided by the contract that the plaintiff when not traveling should report to the Jeantet store and assist in the work about the same. It was made to appear that Mrs. Jeantet required of the plaintiff that he should attend at such store when not traveling, at eight o’clock in the morning. It is also shown that the plaintiff disobeyed and disregarded that requirement, and that he refused to attend at that hour, and that he also refused to wait on customers when requested by Mrs. Jeantet so to do. The defendants moved to dismiss the complaint on the ground that it appeared that the plaintiff willfully disobeyed orders of his employer by refusing to attend at eight o’clock in the morning, but it was agreed by counsel that the motion should be held over until after the jury had rendered a general verdict, and the court charged the jury as follows: “Now, the justification, in substance, which they plead, is disrespectful conduct on the part of Mr. Costet to ■ Mrs. Jeantet, and disobedience of her orders, that is, of course, unreasonable disobedience. Now, with respect to disobedience of her orders, you have heard what that claim is. I believe one is with respect t.o refusing to serve customers ; the other is with respect to not coming at some hour earlier than 9 .o’clock. You must say whether he did refuse to obey a reasonable order of Madame J eantet, and if he did and was discharged, that is any of the orders of which there .is evidence, if you find that there was such an order made, and if you find that the discharge was on account of the refusal to obey a reasonable order, and that it was one of the orders which it is charged that he disobeyed, you should find' a verdict against the plaintiff so far as the executors are concerned.” ■ Upon this subject the court then said that it would ask the jury to answer-this question specifically: “ Did the plaintiff refuse to obey a-reasonable order of Mrs. Jeantet, yes or no, either one, in addition to a general verdict?” and further that the- jury might" find a verdict against the executors" and not against Emile E. Jeantet, or they Aould find a verdict in favor of all the defendants against the plaintiff or against' Emile E. Jeantet personally and not against the executors. The jury' found' a general verdict against all' the defendants. .

- The instruction concerning the rendition of. a verdict against the defendants separately ór collectively was erroneous, but as the jury found against all the defendants, that particular feature becomes unimportant. .After the jury retired they asked for instructions as follows': “ Kindly let us know if we. have to answer the' question in" re plaintiff’s refusal to obey a reasonable order before coming to a verdict. Also, does the answer to the above question require a unanimous reply one way or the other. The whole question seems to hinge on the question.” The judge, therefore, withdrew the direction to find specifically, and, as stated, the jury found a verdict for the plaintiff.

In the manner in which this case was.left to the jury it is plain that, although the special question was withdrawn from their consideration, ytet it was- submitted to them to' determine, not whether, as matter of fact, the plaintiff was discharged because of disobedience of a reasonable order, but whether that order was in itself reasonable, and in this view the case went to the jury on ah improper presentation. It is well settled in the law.that where an employee seeks to recover for an unlawful discharge from his employment it is a good defense to his action that he lias been guilty of disobedience of lawful • and reasonable orders of his employer, or that he lias in some other way by his acts given just cause for his discharge. It was shoxwn in evidence that the store of the defendants was open every day at seven-thirty in the morning and closed at five-thirty in the afternoon. There were ten employees in the store, all of whom were there at seven-thirty o’clock in the morning, except the bookkeeper. The plaintiff had been in the employment of the defendants before January 1, 1901. The proprietors of the establishment, or the members of the firm, were always there at seven o’clock. The plaintiff was under obligation, according to his contract, when not traveling, to be at the store and assist therein. In this case it should not haye been left to the jury to say whether the requirement of the defendants was a reasonable one. On the whole proof it was for the court to say whether it was or not. As was remarked in Jerome v. Queen City Cycle Co. (163 N. Y. 351): “Courts will not permit juries to guess or speculate, when, from the undisputed evidence, it is apparent that the order of the master was reasonable and that the servant was guilty of insubordination.” Where the fact of disobedience is in dispute, it is, of éourse, a matter for the jury. Here there is no dispute that the plaintiff refused to attend at the time required by his employer. In Tullís v. Hassell (54 N. Y. Super. Ct. 391), which was an action for damages for a wrongful discharge of the plaintiff who had contracted to give his time and best efforts to the business of the defendant, it appeared that the defendant wrote the plaintiff that he required him to report at the office every morning at nine o’clock and again between five and six o’clock in the evening, and report the work done during the day. The plaintiff disobeyed this requirement. The jury were instructed to find whether the command was reasonable, and the court on appeal held that it was of a kind that the defendant might give at his pleasure, whether it was for his interest or not, and the-jury could not find that the command was unreasonable.

Where an order is given to an employee, and he disobeys it, his employer having an undoubted right to direct the times and manner in which service shall be performed, provided there is no specific agreement with relation thereto, the right of the employer to discharge for such disobedience follows necessarily. If this were not so, as was well said in the case of Jerome v. Queen City Cycle Co. (supra), the position of employer and employee would be reversed. The defendants had the right to control their own business, to give proper directions to their employees with respect to the time of their attendance.- Where a servant defies the proper direction of the master, he sets, to his fellow-servants, an example of insubordination which may seriously affect that master’s business.

We think the learned judge in this case should have charged the jury, that the direction given by the defendants to the plaintiff that he should attend at a certain hour in the morning was a reasonable requirement, and if they found as matter of fact that the plaintiff had disobeyed such requirement or direction, his discharge was justified. As the employment was by a copartnership and not by an individual, if the discharge were justified, the defense inured to the benefit of all the members of the copartnership.

The judgment and order should be reversed and a new trial ordered, with costs to appellants to abide the event,

O’Brien, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.  