Rafalo v. Edelstein

Seabury, J. This is an action to recover damages for the alleged breach of a written contract of employment. The plaintiffs are husband and wife, and were-employed by the defendants to act, play and sing at the defendants’ theatre. The facts as found by the jury are as follows: The defendants instructed the plaintiff Raíalo to play the part of the wife in the play called “ Ikely Mazek.” The plaintiff Raíalo refused to comply with this request on the ground that it would require her to play a “ mother’s ” part, and that she was “ artistically unfit ” to perform a part of this character, as she was accustomed to perform only “ prima donna parts.” Upon this refusal one of the defendants told her, “ You will have to play that part, or your contract is broken.” Upon being confronted with this alternative, the plaintiff testified that she “ commenced to cry ” and the defendant left the office. In a short time the defendant returned, and said, [155] “ Listen to me. You think the matter over and consider it, and do me a favor and play the part.” This interview the plaintiff claims occurred on Sunday, December tenth. On Sunday evening she telephoned to defendant that she had decided to accommodate him and play the part. The defendant told her to come to his office at noon on the following day. On the following day she went to the defendant’s office, and the defendant said: You have broken your contract, and you are discharged.” The learned court below charged the jury as a matter of law that if, before the defendant discharged the plaintiff, the latter reconsidered her refusal to play the part assigned to her, there was no justification for her discharge by the defendants. There is no doubt, under the contract under which the plaintiff was employed, that the defendants had the right to require her to play the part which they assigned to her. Nor is there any doubt that her refusal to comply with this request was an act of disobedience which would have justified her discharge. It is claimed, however, on behalf of the respondent that the fact that the defendants asked the plaintiff to rpconsider her refusal, and that she did reconsider and offered to comply with the defendants’ request before she was discharged, was, as a matter of law, a waiver of the right to discharge her and a condonation of her breach of contract. We do not think that this is the correct rule. ■. The fact that, instead of discharging the plaintiff immediately upon her refusal to comply with their order, the defendants endeavored to persuade her to do so, and asked her to reconsider her refusal, did not, as a matter of law, constitute a waiver of the right to discharge her. The fact, that an employer continues an employee in his employ after cause for discharge exists, is not, as a matter of law, a waiver of the right to discharge him. Gray v. Shep [156] ard, 147 N. Y. 177, 183; Jerome v. Queen City Cycle Co., 163 id. 351; Rosback v. Sackett & Wilhelms Co., 134 App. Div. 130; Huntington v. Claflin, 10 Bosw. 262. Whether the plaintiff’s breach of contract was condoned by the defendants was a question of fact for the jury to determine under all the circumstances of the case. It was, therefore, error for the court below to predicate condonation as a matter of law upon the fact that the defendants urged the plaintiff to reconsider her refusal to obey a lawful order given to her. In Wood on Master and Servant (§ 123) it is said: “ The question as to whether the master has waived a breach of contract by the servant, by retaining him in service after knowledge of such breach, is a question of fact for the jury.” In Dunkell v. Simons, 15 Daly, 352, Van Hoesen, J., writing for the G-eneral Term of the Court of Common Pleas, said: “ It is for the jury and not for the court to determine whether or not the defendant had pardoned and condoned the offense of drunkenness; and the court should tell the jury that it did not follow that the offense was condoned because the employer did not discharge the clerk on the spot; that there must be evidence of condonation, and that the circumstances must show that the employer had forgiven the clerk and that the delay of the employer in discharging him was owing to forgiveness of the delinquency, and not for any other good reason.” In Rosback v. Sackett & Wilhelms Co., supra, it was held that the fact that the master continued to employ a servant for four or five weeks after he finished certain defective work was not, as a matter of law, a waiver of the right to discharge him. As the charge of the learned court below withdrew the issue of condonation from the jury, there must be a new trial. [157] Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. Gerard, J., concurs. •