FREEMAN et al. v. WAXMAN et al. (Supreme Court, Appellate Term. May 5, 1904.) 1. PRINCIPAL AND SURETY-DEFALCATION. An agreement by defendants to become bound in the sum of $100 in case an employé of plaintiffs' left them during a certain season, and they sustained loss through his leaving, merely made defendants liable for proved damages in the event the employè left, and did not render them liable for a defalcation. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Herman Freeman and another against Nahum Waxman and another. From a judgment for plaintiffs, defendants appeal. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. John Gruenberg, for appellants. Jacob Freeman (Isidore Osorio, of counsel), for respondents. LEVENTRITT, J. Plaintiffs had recovery in a suit brought on the following instrument: "H. Freeman & Son,. "Manufacturers of Ladies' Wrappers, "152-154-156 Wooster Street. "New York, July 10, 1903. "For and in consideration of One ($1.00) dollar, we hereby bind ourselves to H. Freeman & Son, in the sum of One hundred dollars, in case Mr. E. Greenfield leaves them during the fall season of 1903 and they sustain loss through his leaving. "Waxman & Melger [L. S.], Plaintiffs and defendants had never met. According to the plaintiffs, they advertised for a salesman, and the Mr. Greenfield mentioned in the instrument presented himself. They required some guaranty for the samples to be intrusted to him, and thereupon Greenfield obtained the instrument. According to the defendants, Greenfield came to them, asking for a guaranty, so that he could get a position as foreman with the plaintiffs. It is undisputed that the instrument was drawn and proffered by the plaintiffs. After being employed in the latter's store for a short time, Greenfield was sent on the road with samples exceeding $100 in value. He also received a sum in cash. Subsequently a further cash remittance was sent him, apparently in the early part of August. Nothing has been heard of him since. The fall season ended on December 15th. I am of the opinion that the instrument sued on will not support the action. The contract is in writing, and is to be construed according to its terms. It is unnecessary to invoke any question of strictissimi juris. "Where the question is as to the meaning of the language of the contract, there is no difference between the contract of the surety and that of anybody else." Gamble v. Cuneo, 21 App. Div. 413, 47 N. Y. 88 N.Y.S.-9 and 122 New York State Reporter Supp. 548; Belloni v. Freeborn, 63 N. Y. 383. Applying the ordinary rules of construction, we get little from the situation of the parties, as they had never met. The defendants signed the instrument as tendered to them by the plaintiffs through Greenfield. The contract seems quite unambiguous on its face, and seems to be anything rather than a surety's contract for the fidelity of an employé. It would seem to be simply a contract binding the defendants to liability for proved damages in the event that the employé left the employment. It was a contract to insure service for a stipulated time. It is not an assumption of liability in the event of defalcation. It may well be that the plaintiffs intended to get a fidelity contract, but, in the absence of ambiguity in the instrument, and of facts and circumstances which sometimes permit the construction of the promise in the sense which the promisor must have believed the promisee to have accepted it (Gamble v. Cuneo, supra), we are remitted to the plain terms of the instrument itself. That would appear to be merely an engagement that Greenfield would continue in the plaintiffs' employ for the fall season. Had it been intended as a contract of fidelity, it is not likely that the liability would have been limited to a special season, but would have been extended instead to the full term of the employment. The words "sustain loss through his leaving" are not definite enough to cover a case of defalcation. They must be read in connection with what immediately precedes, and refer to the direct pecuniary loss that may be suffered as a result of Greenfield's leaving the employment during the period for which his services were apparently most desired. The judgment must be reversed, and a new trial ordered, with costs to appellant to abide event. All concur. SCHOOR v. DOCTOR. (Supreme Court, Appellate Term. May 5, 1904.) 1. AGENCY-AUTHORITY TO SIGN CHECKS-EVIDENCE-SUFFICIENCY. In an action on a check alleged by defendant to be a forgery, evidence held insufficient to show that his bookkeeper had authority to sign the check. Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Benjamin Schoor against Emanuel Doctor. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Lese & Connolly, for appellant. PER CURIAM. The action was brought to recover upon two checks for $30 and $75, respectively. The defenses were that the former, although signed by the defendant, was never issued, and had no legal inception, and that the latter was a forgery. That the $75 check was a forgery was conclusively established, unless the proofs in the case were sufficient to spell out an authority in the defendant's bookkeeper to sign the check in the defendant's name. The only testimony on this point was the following, elicited on defendant's cross-examination: "Q. He had authority to make out checks, didn't he? A. No, sir. Q. Did he make out all checks? A. Some; sometimes." How an authority to sign checks can be inferred from the testimony quoted is quite inconceivable. The witness' statement plainly meant that his bookkeeper usually filled in the body of the check, which, indeed, is the case with the $30 check concededly signed by the defendant, which is in evidence. If the bookkeeper had in fact authority to sign checks, his imitation of defendant's handwriting on the forged check would have been unnecessary. Proof of such authority might readily have been obtained from the bank, but no such proof was introduced. In support of the judgment the respondent urges that the defendant. was estopped from setting up his defenses, and based the alleged estoppel upon the proof that prior to the transactions here involved the defendant introduced the plaintiff to his bookkeeper, and requested the plaintiff to cash checks for him, and that a great number of defendant's checks had been cashed by the plaintiff. All of this was flatly contradicted by the defendant. The plaintiff's story is absolutely uncorroborated in any respect, and his veracity is open to some doubt in view of the testimony of his own witness, which conflicts materially with his. The probabilities of the case, too, are with the defendant and against the plaintiff. It is highly improbable that the defendant, having his place of business at Sixty-Sixth street and Avenue A in this city, should send to the defendant's place of business at 170 Orchard street to have checks cashed, when the State Bank, in which he had his account, was in Grand Street, a few blocks from the defendant's place of business. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. LEVY V. ASH. (Supreme Court, Appellate Term. May 5, 1904.) 1. COUNTERCLAIM-AFFIRMATIVE JUDGMENT. In an action for goods sold and delivered by plaintiff's assignor to defendant the latter could not recover under his set-off an affirmative judgment against plaintiff. Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Abraham Levy against Magnus Ash. From a judgment for defendant on his counterclaim, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Irving I. Kremer, for appellant. Steuer & Hoffman, for respondent. 11. See Set-Off and Counterclaim, vol. 43, Cent. Dig. §§ 107, 110. and 122 New York State Reporter PER CURIAM. The action was brought for goods sold and delivered by plaintiff's assignor, and the defendant counterclaimed damages arising from a breach of contract between himself and plaintiff's assignor. A judgment was rendered upon the counterclaim for the difference between the amount therein claimed and the plaintiff's claim. The claim asserted by defendant would be at most an offset, and no affirmative judgment for the excess could be rendered against the plaintiff. Defendant's proofs also show that, assuming that he was entitled to an offset, in no aspect would he be entitled to more than the sum of $18.50, which was less than the plaintiff's claim. It is unnecessary to refer to other alleged errors affecting the admission of evidence, as sufficient has been shown to entitle the appellant to a reversal of the judgment. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. FLOMERFELT v. DILLON. (Supreme Court, Appellate Term. May 5, 1904.) 1. LANDLORD AND TENANT-TENANT HOLDING OVER TERM-IMPLIED AGREE MENT. When a tenant holds over after the expiration of his term, an agreement for a year on the terms of the prior lease is implied. 2. SAME-ACTION BY LANDLORD-AUTHORITY OF AGENT EVIDENCE. In an action by a landlord for rent, where one of the issues was the authority of a certain person to bind the landlord by an agreement with the tenant, it was error to refuse to permit plaintiff, on his cross-examination of such person, to inquire into the extent of his authority. Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by James R. Flomerfelt against J. J. Dillon. From a judgment dismissing the complaint, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ. Walter L. McCorkle, for appellant. GREENBAUM, J. Defendant was the tenant of the plaintiff of certain apartments under a written lease, expiring October 1, 1902. In September, 1902, the tenant had negotiations with Porter & Co., who the defendant claimed were the agents of plaintiff, looking to a renewal of the lease for another year. As the terms of the new lease had not been fully agreed upon before October 1, 1903, the defendant forwarded a check to Porter & Co. for $65, as rent for October, inclosed in a letter in which plaintiff stated that it was sent "with the understanding that there is no implied responsibility or agreement on my part for the rent of the apartments beyond the month of October." Negotiations were continued during October, and on October 29th Porter & Co. sent the defendant a written lease for a year, which the latter declined to 1. See Landlord and Tenant, vol. 32, Cent. Dig. §§ 284, 378. sign upon the ground that it did not express the understanding between. them; and on October 31st he forwarded to Porter & Co. another check for $65 for the month of November, stating that it was sent "with the understanding the same as for the month of October, that there is no implied responsibility or agreement on my part for the rent or lease of the apartment beyond the month of November." No written lease was thereafter executed, but the tenant continued in occupancy and paid his rent monthly until the 30th day of June, 1903, when he removed from the premises. This action was brought to recover the rent for July, August, and September, 1903, upon the ground that the defendant held over his original term, and was liable for another year's rent. The general rule is so well settled that, when a tenant holds over after the expiration of his term, the law will imply an agreement for a year upon the terms of the prior lease, that it is unnecessary to cite any authorities in its support. Defendant's counsel contends that pursuant to an agreement with Porter & Co., as agents of plaintiff, the defendant became a tenant from month to month, and was privileged to move when he did. The difficulty with the contention is that, even if it be assumed that Porter & Co. were the agents of plaintiff, the letters of defendant from which quotations have been made, and the testimony of the defendant himself, do not show that any such agreement was in fact made. There was at best an understanding that pending the negotiations for a new written lease the tenant's occupancy during October and November, respectively, shall not be deemed extended beyond those months. If the tenant remained in possession after November, he did so at his peril. There was also error committed upon the trial in refusing to permit the plaintiff's counsel, upon his cross-examination of Mr. Bernard, at member of the firm of Porter & Co., who had been called as a witness by defendant, to inquire into the extent of his authority to represent the plaintiff an issue which was clearly raised by the plaintiff. Objection to this testimony was taken upon the ground that it was “immaterial." The scope of the agency of Porter & Co. was very material, and the inquiry was pertinent to the matters litigated. The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. MOORE V. ENCYCLOPÆDIA BRITANNICA CO. (Supreme Court, Appellate Term. May 5, 1904.) 1. DISCOVERING DOCUMENTARY EVIDENCE-INSPECTION. Where, in an action for an alleged unlawful discharge of a servant, defendant pleaded that the original agreement was abrogated and a new written contract made between the parties, and plaintiff, after demand, moved for an inspection of such contract, alleging that he had no knowledge thereof, that no copy was in his possession or under his control, and that he never entered into such a contract, together with the fact that an inspection was material and necessary to enable him to prepare for trial, an order denying plaintiff's application was erroneous. Appeal from City Court of New York, Special Term. |