Davis v. Dodge (126 A.D. 469, 1908)

Rich, J.:

Upon the trial the learned justice presiding ruled that the words used in the contract, his entire business services,” and the omission to state or indicate the services to be performed by plaintiff made the contract ambiguous, and received parol evidence to explain their meaning and show their application. It had appeared in evidence without objection that for twenty-three years preceding the making of the contract the plaintiff had followed the business of a horse trainer and driver in races, developing trotting and pacing horses and making a specialty of driving in races, and at the time the contract was made, and for some time prior thereto, had some of the defendant’s horses in his care and had driven them in races which were attended by defendant. The plaintiff’s contention was that because of this fact, the knowledge of defendant that he was a driver and trainer of experience and his lack of knowledge and experience in other lines of business, the words in the contract were understood and intended by the parties to apply to the services with which he was familiar and in the rendition.of which he was an expert. While it was claimed by defendant that the understanding and intention of the parties was that the plaintiff should do whatever the defendant required of him in a business way, and that he had the right to direct him to devote his time to whatever he saw fit and at such places as the defendant saw fit to send him, to the exclusion of the profession to which the plaintiff had devoted his life, either of these constructions might very properly be given to the words used. A contract is ambiguous when it is open to various interpretations, has a double meaning and is, therefore, of doubtful purport. I think parol evidence as to what the understanding and intention of the parties was at the time they entered into the contract was properly received. (Petrie v. Trustees of Hamilton College, 158 N. Y. 458 ; Emmett v. Penoyer, 151 id. 564, and cited cases ; Dodge v. Zimmer, 110 id. 43; Kenyon v. K. T. & M. M. A. Assn., 122 id. 247.) And the jury have resolved the question of fact as to the contention of the parties in favor of the plaintiff. This brings us to the consideration of the only other question presented which it is necessary to consider.

The contract was executed on June 19, 1905, and on the first of July following the plaintiff entered upon its performance. He had the care and training of horses for the appellant and others until December of that year, when he was sent South to sell the capital stock of the L. D. Johns Company, ■ with the understanding, he testifies, that the defendant would send for him in May following, at which time a good string of horses would be purchased and placed in plaintiff’s charge. After a short time spent in trying to sell the stock, the plaintiff became dissatisfied with the work and wrote the defendant complaining of his experience, expressing his dissatisfaction. Within a month after this time he was discharged. He had been paid in full to March first. This action was commenced on the sixteenth of the following month and was tried in January, 1907, some eight months before the expiration of the time stated in the contract for its termination.

The plaintiff has recovered more than his wages would have amounted to at the time of the trial, and defendant contends that the recovery could not, in any event, exceed the amount unpaid and due at the time of the trial, less deductions for earnings subsequent to his discharge. The answer to this is that the action is not brought to recover wages, but is to recover damages for a breach of the contract of employment for which the plaintiff can maintain but one action and in which all of the damages sustained by him that are susceptible of proof may properly be recovered. In such an action the plaintiff is entitled to recover such damages as he can show he has sustained by a total breach of the contract. Where it is certain that damages have been caused by a breach of the contract and the only uncertainty is as to their amount, no good reason exists for denying a recovery to the extent of such as are reasonably certain and actually might follow such breach determinable approximately by a jury upon reasonable conjecture and probable estimates. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205.) In the case at bar the damages sustained by plaintiff were clearly the amount of his wages due at the time of the trial, less his actual earnings up to that time, and those that would have become due after the trial being reduced by the amount of his future earnings. In American China Development Co. v. Boyd (148 Fed. Rep. 258) the plaintiff had been employed for a term of five years and discharged one year and ten months after the beginning of the contract period. There was due the plaintiff at the time of trial salary for two months and ten days, $1,166. Had he been permitted to discharge his duties under the contract until the expiration of the term, his salary would have amounted to $18,500. The recovery was for $13,519, and was upheld.. In Pierce v. Tennessee Coal, etc., R. R. Co. (173 U. S. 1) the United States Supreme Court held that on being discharged from a contract of employment the party discharged might in an action to recover the full value of the contract include all that he would receive in the future under its provisions, deducting any sum that he might thereafter earn.

A careful examination of the record fails to disclose any substantial error, and the judgment and order must be affirmed.

Gaynor, J.:

1. Whether damages for breach of a contract of service for a fixed term at a fixed salary by the discharge of the employe may be estimated to the end of the contract period or only up to the day of the trial of the action, when the contract period has not yet expired, is unsettled in this state. In this case the learned trial Judge charged that they could be estimated to the end of the contract period.

The rule is settled in England and here that the employe- has an immediate right of action on the breach for his entire damage (Hochster v. De La Tour, 2 El. & Bl. 678). On what principle may he be arbitrarily restricted in his damage to the time which has elapsed before the trial ? The question does not seem to have been raised in any case in England, and its origin in this country is vague. If (for instance) I employ a man for a period of three years, and discharge him at the end of one year without cause, and he presently sue me for the breach, and is able to show on the trial (it occurring before the end of the contract period) that he has entered into a similar employment for the remainder of the contract period, but (doing his best) for less than I agreed to pay him, who would say that he was not entitled to recover the damage thus shown ? The measure of damage would seem to be on principle, and in analogy to the general rule of damages in similar cases whether on breach of contract or in tort, the amount stipulated by the contract, less the amount the plaintiff has already earned, or should have earned with due diligence, since the breach and up to the time of the trial, and also less the amount which, with due diligence, he should earn in the future to the end of the contract period; the jury taking into consideration whether he will probably live so long, and all other pertinent facts. Juries have to do the like in other actions every day. That damages are difficult of estimation is not a reason for not estimating them (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205). The question must therefore come down to one of proof, i. e., the plaintiff may recover all the damages he can prove, whether up to the time of the trial, or not up to that time, or up to the end of the contract period, whether it be before or after the trial. This is the general rule in actions for damages for breach of contracts, and there seems to be no reason to exclude actions for breach of contracts of service from it. The plaintiff in such an action, the same as in other actions, should be able to recover such damages as may be fairly or reasonably estimated from his proofs, taking all the facts, probabilities, certainties and uncertainties into consideration.

There has been much indiscriminate citation of cases in this country on the question. Cases are cited again and again for the proposition that the damages may be estimated only during the part of the contract period which has elapsed before the trial, nearly all of which being looked at are found to be cases where the contract period had not expired when the action was begun but had expired before the. trial day, and where the question ivas whether the damages could be recovered up to the time of the trial {i.