Schlossberg v. Brody

Ingraham, P. J.: This action was brought for a breach of contract of employment. The plaintiff testified that in September, 1910, he started to work for the defendants as a foreman at a salary of twenty-five dollars a week, with an interest in the business; that in October, 1910, he made a new agreement with the defendants by which he was to receive a certain sum for each skirt manufactured by him for the defendants which was to last up to the end of July, 1911; that the busy season started in January and lasted about four months; that with this money that he received from the defendants he paid his help and the rest of it was his profit; that there were sometimes as many as a hundred different kinds of skirts manufactured, and the prices that he was to receive for making these skirts ranged from twenty to forty cents, or up to fifty cents, depending upon the style of the garment; that, having made this agreement in October, in the month of December Mr. Punt, one of the defendants, told him that he should reduce the prices because help in Passaic, to which place the defendants had moved their manufactory, was cheaper than in Hew York; that the plaintiff refused to reduce the prices when Punt said that he had got some one - else who would make these skirts for less. The ¡plaintiff then testified that under his former employment with [163] the defendants in the months of January, February, March and April in each year, which was the busy season, he had manufactured for the defendants about 500 skirts a day, sometimes more than that; that there was an average of 500 a day during the four months of the busy season; that the season in the year 1911 did not change, or was not in any way different from the season of the preceding years; that he could not give the definite amount each day, as he had no records; that he turned in slips to the defendants and they paid him for his work and kept the slips; that during January, February, March and April, 1909, the period during which he had worked for the defendants, the average net profits would be from forty to fifty dollars a week, but after the first of July there would be no work, and the season would start again the following J anuary. After this contract was made in October the plaintiff seems to have continued in the employ of the defendants down to the end of December, 1910, and on the first of January the defendants moved to Passaic, K". J. On cross-examination plaintiff testified that he made ten cents profit on some skirts, and that his average profit was five cents per skirt. The plaintiff also called as a witness one Kass who was in the plaintiff’s employ for the season ending in July, 1909, at the defendants’ place of business. This witness testified that the work that she did there was to figure up how much work the plaintiff did for the defendants, checking off the goods and examining them as they were delivered by the plaintiff to the defendants for which she made tickets and delivered them to the defendants, when the defendants paid the plaintiff for the number of skirts that he had made; that the witness worked there during the months of January, February, March and April in the season of 1909, and that in the end of July, 1909, she figured out the amount of work that the plaintiff did during the preceding six months; that the number of skirts that the plaintiff made for the defendants during that time was more then 80,000, and during the months of January, February, March and April the plaintiff made for the defendants about 500 skirts a day or 3,000 a week; that the amount of money that remained to the plaintiff after he had paid the expenses was from $150 to $190 a week during these three months; and this was all the testi [164] mony as to the amount that would be due the plaintiff if the defendants had completed this contract. Thus, the testimony of the plaintiff that the season of 1911 was the same as the seasons of 1908 and 1909, and what his profits had been in the year 1909, was offered as some evidence as to what the plaintiff would have made during 1911, if he had been allowed to complete his contract. There was no evidence of the plaintiff tending to show how many skirts the defendants actually made during the season of 1910 and 1911, but it appeared that after the contract was made the defendants moved to Passaic, N. J., and subsequently conducted their business there. The defendants deny the contract as alleged by the plaintiff; and then by the testimony of the defendants offered evidence tending bo show the exact number of skirts that they made during the season of 1910 and 1911. The defendants’ books were not introduced in evidence and there was no independent testimony as to the number of skirts that they actually manufactured after they moved to Passaic in the season of 1911. The court then submitted the question to the jury as to whether there was a contract and whether the defendants had broken it, and their verdict in favor of the plaintiff, I think, was sustained by the evidence. The court then charged the jury that if they should find in favor of the plaintiff that there was a breach of contract for the season of 1910 and 1911, the jury could take into consideration the testimony that had been given as to the work done under the prior employment in determining the amount of the plaintiff’s damage, calling the attention of the jury to the evidence of the plaintiff that there was a marked decline in the business from January 1 to August 1, 1911, and that during this latter period the defendants manufactured only 10,255 skirts. There was no exception to this charge and no request to direct the jury to find a verdict for nominal damages only if they found that the defendants were guilty of a breach of the contract, or limiting the recovery to the profits upon 10,255 skirts that the defendants claimed had been manufactured during the season of 1910 and 1911. The jury found a verdict for the plaintiff for $1,500 of fifteen cents upon each skirt which the defendants admitted they had manufactured during the season of 1910 and 1911. [165] I think that the testimony as to the amount of business that the defendants did in the prior season was competent in connection with the plaintiff’s evidence that there was no difference between the seasons of 1909, 1910 and 1911. Its probative force depended entirely upon the defendants’ business during the season of 1910 and 1911, and the plaintiff’s testimony was that the general business conditions were the same. The defendants’ testimony was that the business for 1910 and 1911 was not as good as the prior years. The plaintiff was entitled on that evidence to a verdict for the profit that he would have made if the defendants had completed the contract. The jury were not bound to believe the evidence of the defendants as to the extent of their business. The defendants did not introduce in evidence the slips from which the entry in their books had been made; nor did they introduce in evidence the books of account which would show the actual transactions as to the amount of their business. There was a question on this evidence as to the amount of profit that the plaintiff would have made and the amount of business that plaintiff would have been able to do if the defendants had not broken the contract. The question was a fair one for the jury, and I think their verdict should not be disturbed. The judgment should be affirmed, with costs. McLaughlin and Scott, JJ., concurred; Laughlin and Dowling, JJ., dissented.