Schwartzreich v. Bauman-Basch, Inc.

Bijur, J. Plaintiff, an employee, sued his employer, the defendant, for breach of a written contract of employment made October 17, 1917, to continue for twelve months, beginning November twenty-second, under which plaintiff was to receive a salary of $100 per week. . It appeared on the trial that on August 31, 1917, a written contract in all respects identical with the one sued upon had been made between the parties, except that the weekly salary was therein fixed at ninety dollars. The trial was conducted with great care and exactness by both court and counsel, and the court in charging the jury repeatedly impressed upon it that “ the test question is whether by word or by act, either prior to or at the time of the signing of the $100 contract these parties mutually agreed that the old contract from that instant should be null and void.” The jury having brought in a verdict in favor of plaintiff, the court, upon a motion of the defendant [216] to set the verdict aside “ particularly on the ground that there is no evidence in the case of mutual consent or agreement to cancel the first contract at the time or prior to the execution of the second contract, ’ ’ ultimately granted the motion and dismissed the complaint under a reservation of power made at the trial, saying ‘ ‘ that there was not sufficient evidence that the first contract was cancelled upon the making of the second one to warrant the jury’s finding. ” The contending parties agree fairly well on the substantive law applicable to the case. It is conceded that “A promise by one party to do that which he'is already under a legal obligation to perform is insufficient as a consideration to support a contract.” Carpenter v. Taylor, 164 N. Y. 171, 177; Robinson v. Jewett, 116 id. 40; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id. 562; Vanderbilt v. Schreyer, 91 id. 392. It is true that appellant urges that the mere making of a subsequent agreement covering the same subject matter necessarily supersedes a prior agreement to the same effect, citing Housekeeper Pub. Co. v. Swift, 97 Fed. Repr. 290, and McCabe Cons. Co. v. Utah Cons. Co., 199 id. 976, but I cannot find in the opinions in those cases that the question whether under such circumstances there is any consideration for the second contract was raised or suggested. The principle itself is too well established to be questioned. It has been applied to a case of an increase of salary similar to the one under consideration in Cosgray v. New England Piano Co., 10 App. Div. 351. On the other hand, in a leading case in this state (Vanderbilt v. Schreyer, supra), it was said at page 402: “It would doubtless be competent for parties to cancel an existing contract and make a new one to complete the same work at a different rate of compensa [217] tion, but it seems that it would be essential to its validity that there should be a valid cancellation of the original contract. Such was the case of Lattimore v. Harsen, 14 Johns. 330.” To the same effect is Stewart v. Keteltas, 36 N. Y. 388; Hart v. Lauman, 39 Barb. 410, 415, 416. And the question whether the earlier agreement had been canceled was expressly submitted to the jury and answered in the negative in Harris v. Carter, 3 El. & Bl. 559. It is not necessary, as I view it, in the instant case to determine whether in order to sustain the second agreement the cancellation of the first must have taken place before the second was physically signed. My own opinion is that the time of signing the second contract is in this connection immaterial. A written agreement in order to become effective must be “ delivered.” The delivery may be informal and inartificial provided the intent is sufficiently demonstrated. Dietz v. Farish, 79 N. Y. 520; Sarasohn v. Kamaiky, 193 id. 203, 215. Similarly, the cancellation, or as it is sometimes called, the “ rescission,” of an agreement may be evidenced by implication quite as effectively as by express words. Hart v. Lauman, supra. And whether it has taken place must be determined by all the circumstances in evidence which affect it. Matter of Chamberlain, 146 App. Div. 583; affd., 204 N. Y. 665. It seems to me, therefore, that if after the second agreement had actually been signed the parties had canceled the earlier one and the circumstances indicated the intent to redeliver, or make effective, the second agreement, there is no reason why that result might not validly be achieved. This nice question, however, need not be decided in the instant case; for as I read the record there was evidence upon which the jury [218] might properly have, based its finding that it was the intention of the parties to, and that they actually did, cancel the first contract before the execution of the second agreement. Plaintiff testified that he delivered the earlier contract to defendant’s president, Bauman, at the time of the signing of the later one, and Bauman said to him: “ You do not want this contract any more because the new one takes its place.” Bauman testified that the first contract was not handed to him at the signing of the second contract, but that plaintiff tore off the signatures to the old contract in his presence, to which he made no objection, and that this was done “ after I gave him the new contract. He tore the signatures off.” As defendant-respondent interprets this testimony: “According to the plaintiff’s version after the second contract was signed, plaintiff offered to Mr. Bauman his copy of the first contract and Mr. Bauman refused to accept it. According to defendant’s version, after the contract was signed plaintiff offered Mr. Bauman his copy of the first contract; he refused to accept it, and thereupon plaintiff tore off the signatures at the bottom of his copy. Upon neither version of this occurrence can an agreement binding on the defendant be spelled out to cancel and rescind the first contract.” There might be some force in this contention if it could be successfully maintained that the only way to cancel an agreement was to return to the respective signatories the duplicates thereof, or to tear off the signatures, or even if such cancellation could be evidenced by those circumstances alone. The mere statement of the proposition, however, suffices for its own refutation. The question submitted to the jury was: Did the parties prior to the signing of the second [219] agreement cancel the first? It is. conceded that the second agreement was drawn up by the defendant’s president in the plaintiff’s presence, and was thereupon signed by both parties. Bauman testified: “ Q. And was it your understanding at the time you signed the paper and gave him one copy of it that you were giving him a contract for the year ending November, 1918 (the same term as was covered by the prior agreement) ? A. That is right. Q. Did you receive any other paper at that time? A. No, sir. Q. Now, are you positive about that? A. Positive. Q. Didn’t you say to Mr. Schwartsreich (plaintiff) at that time that he should give you a paper that he had signed beforef A. I did. Q. Did he give it to you? A. Not at that time * * * later he gave it to me. The Court: Q. Was that contract of August? Plaintiff’s counsel: A. That was the contract of August.” The testimony of Bauman that at the time of execution of the second contract he demanded from plaintiff the surrender of plaintiff’s copy of the old agreement is not explained upon, and cannot be reconciled with, any other theory than that Bauman understood that the parties had previously agreed that the first contract be canceled. I am, indeed, inclined to believe that this evidence is well nigh conclusive to that effect; but in any event it furnished, together with the balance of the testimony, ample ground for the finding of the jury which I also think was correct. The order setting aside the verdict and the judgment dismissing the complaint should be reversed and the verdict and judgment reinstated, with costs to appellant.