
    Albert Dunkell, Plt’ff and Resp’t, v. Henry F. Simons and Frederick C. Cunningham, Def’ts and App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed May 31, 1889.)
    
    
      1. Master and servant—Discharge—When justified.
    An employee to retain his employment must be sober, attentive, obedient and polite, and one act of inebriety, want of attention, willful disobedience or rudeness while engaged in the performance of his duties, may justify his discharge.
    2. Same—Condonation.
    But if such an offense be committed justifying the employees’ discharge, and the employer voluntarily continues to accept his services after the breach, such breach is condoned by the employer.
    8. Same—Disobedience to orders—Reasonableness of order question FOR. JXJRY. *
    When the contract of hiring is in writing, and for a year’s services payable weekly or'monthly, and the employee had committed a breach of his duty which the employer had condoned, and the employer subsequently discharges the employee, alleging, in his notice of discharge, another reason, i. e., the disobedience of orders, the reasonableness of the order as a ground of discharge, is one of fact for the jury.
    Appeal from judgment entered on verdict rendered in favor of plaintiff.
    
      Stapler & Wood, for app’lts; Henry Parsons, for resp’t.
   Per Curiam.

We hold that an employee to retain his employment must be sober, attentive, obedient and polite, and that one act of inebriety, want of attention, willful disobedience or rudeness, while engaged in the performance of his duties, may justify his discharge.

Applying these principles to this case, we hold that the conduct of the plaintiff on December 31, 1887, in taking quinine mixed with whiskey, and repeating the dose at intervals, was misconduct, and this whether the plaintiff had the malaria or not. If the plaintiff was ill and required a compound calculated to intoxicate a person, and incapacitate him from properly attending business, he should háve remained at home, or repaired to some place where his condition would not have been observed.

This misconduct was sufficient to justify the plaintiff’s discharge, if the defendants elected to adopt that course. But they did not exercise this option. They continued the plaintiff in their employ until January 5, 1888, when they discharged him for another reason.

The letter of discharge is in these words:

“New York, January 5, 1888.
“We regret to notify you that on your refusal to do as . instructed, we this day cancel your engagement.
“H. F. SIMONS & CO.”

The contract of hiring was in writing, dated April 1, 1887, and was at the rate of $1,600 “for the year,’’payable weekly or monthly, as due, so that by interpretation the hiring was for the year. The question therefore is, whether the plaintiff was rightfully or wrongfully discharged. The offense of December 31, 1887, was waived by the defendants by continuing the plaintiff in their employ up to and including January 5, 1888, and by then discharging him for another reason. By voluntarily accepting services after the breach, it was condoned by the defendants. Wood’s Master and Servant, § 121.

This brings us down to the cause of the discharge, i. e.t disobedience of orders. The defendants had a lot of geese, amounting to about four or five dollars worth, which they told the plaintiff to sell at eight or nine cents a pound, and he received one cent per pound less. They were inferior, unmerchantable geese, and the difference between the sum at which the plaintiff sold them and the sum at which he was requested to sell them aggregated, on the lot, from fifty to sixty cents. The defendants had frequently told the plaintiff to use his best judgment in making sales; indeed, “use your own judgment,” was a common phrase with the defendants. Taking the direction as an advice from his employers, and using his own best judgment in connection with it, it can hardly be said that the difference/ of f "ty or sixty cents between the advice of the defendants and the plaintiffs’ best judgment and efforts, constituted willful disobedience to the defendants’ orders.

Tlie holidays had passed, the geese were not in prime order, but old and depreciated, and being of a perishable nature it was important that no reasonable chance for a sale be neglected. The use of judgment was called into requisition, and the direction to sell at a specified rate was more in the nature of advice than of command. The plaintiff evidently understood the matter in this way. The reasonableness of the order, as a ground of discharge, was, under all the circumstances, one of fact for the jury, and was properly submitted to them by the trial judge. Wood on Master and Servant, § 116.

The plaintiff was not a menial servant of the defendants. He was a salesman of experience, and they were entitled to the exercise of his best judgment, not contrary to their orders, but in harmony with them, as far as the two could go together, allowing neither to be turned to the prejudice or disadvantage of the employer. The jury evidently found that the plaintiff did the best he could for his employers, and that their order (everything considered) was unreasonable as a basis for the employee’s discharge. The charge of engaging in a rival business was properly submitted to the jury, and was decided against the defendants.

The case is not one free from doubt; it is one about which minds might differ. The trial judge could not have dismissed the complaint or directed a verdict in favor of the defendants. The case had to go to the jury, and their finding ought to be accepted as conclusive on the facts. We find no error in receiving or excluding evidence, and have concluded to affirm the judgment.  