Leslie v. Robie

GILDERSLEEVE, J. The plaintiff is an actress, and the defendant a theatrical manager. The parties entered into a written contract by which defendant employed plaintiff to work for him as an actress at a salary of $20 a week. The contract contained a provision that it might be terminated at any time by either party giving the other two weeks’ notice in writing. On October 21, 1901, the defendant gave plaintiff a written notice that her connection with his company would cease on November 2, 1901. On November 2, 1901, defendant paid plaintiff her salary up to that time. There is practically no dispute as to the facts, and both asked for the direction of a verdict. The court directed judgment for plaintiff. Defendant appeals. The notice of discharge was given on a Monday, and was to take effect at the end of the performance on the Saturday of the following week. The term of employment, unless sooner terminated by two weeks’ notice, was to be 40 weeks. Plaintiff testified she tried to get work during the remainder of the said term after her discharge, but was unable to do so, and the court allowed her as damages the stipulated salary for the unexpired portion of the season after the discharge. See Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285. We see no error in the rule adopted by the learned court below as to the measure of damages, assuming that there is support for the finding that the defendant was guilty of a breach of the contract of employment. But there was no breach if the notice of discharge [290] was sufficient. This is the only question the appeal presents. On Monday, October 21, 1901, the plaintiff notified the defendant in writing (plaintiff’s Exhibit B) that her engagement terminated with the performance on Saturday evening, November 2d, concluding with these words: “Therefore, accept this as your two weeks’ notice as per contract.” There is no evidence that she protested against the notice of discharge until November 2d, but, so far as appears, acquiesced therein, and seems to have treated it as a compliance with the contract as understood by the parties. When her connection with the company terminated, on November 2d, pursuant to the notice, she then protested at receiving a notice of discharge at that time of year. There was no claim then made that the notice was too short. The plaintiff received pay in full to November 2, 1901. The foregoing state of facts having been established by the plaintiff’s testimony, it seems to have been conceded that the evidence was all in, ánd the defendant’s attorney then moved that the complaint be dismissed on the ground that the plaintiff had failed to show a cause of action. We think this motion should have been granted, for the reason that the undisputed facts showed a substantial compliance by the defendant with the terms of the contract. ■ The notice was received by the plaintiff on a Monday, and she was permitted to remain with the company that week and the entire week following, and received full pay for both weeks. It follows that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.