Wolstenholme v. Wolstenholme File Manufacturing Co.

By the Court —

On a careful examination of all the testimony before the referee upon the trial, and comparison of the conflicting evidence upon the various points at issue, I have become satisfied, contrary to my impressions on the argument, that the referee was justified in finding as lie did that the plaintiff was discharged from the defendant’s service “ without just cause.” The first contract was entered into between the parties on the Slth of August, 1864, and was for the term of five years’ service by the plaintiff, unless sooner terminated by the mutual consent of the parties. Under this contract the plaintiff commenced superintending and manufacturing for the defendant some time in May, 1865, and continued for about one year, when, on the 15 th of May, 1866, a new contract was entered into between the same parties, modifying and changing in some respects the first contract, in respect to the plaintiff’s compensation, but not materially in other respects. Under this last contract the plaintiff continued his services until the 2-2d of October, 1866, when he was discharged by the defendant’s officers and stockholders, and dismissed from defendant’s service. Ho cause was assigned in the notice of dismissal. But it was not necessary that any cause should be assigned. If a good and sufficient cause in fact existed, the defendant was justifiable in dismissing the plaintiff, without assigning any reason therefor. The rights of the respective parties rested in the contract which they had deliberately and carefully drawn out and entered into. The plaintiff was something more than the mere servant of the defendant. He was the defendant’s chosen foreman and superintendent, and by the terms of the contract'was to “ have the entire and full control of the manufacturing,” “ including all the employes connected therewith, as general superintendent of the manufactory.” This general power was also by the terms of the same contract coupled with an interest in the profits of the business, by way of further compensation, in certain specified contingencies. He *466was a party to an. express contract, and whatever may have been his strict legal relation to the defendant, it is clear, I think, that he conld not be dismissed and discharged from the service which he had undertaken to perform, with impunity, unless he had been guilty of some substantial violation of the express or implied provisions of that contract.

But, even if he was nothing more than a "mere servant, acting under the general implied obligation of such a relation, upon the finding of the referee he was improperly discharged. It is clear enough that the defendant could not go back of the date of the last contract to find a cause for his dismissal. All previous causes for dismissal, if any existed, were merged in and canceled by the new contract. The referee has found, and as I think properly, that the infirmities and outbreaks of temper and abuse of the hands by the plaintiff, now complained of, mostly occurred before the last contract was entered into, and that since that time he has not been guilty of any such conduct in that regard as would justify the defendant in dismissing him and depriving him of all the benefits and advantages secured to him by his contract.

Indeed the defendant did not dismiss him upon any such ground or for any such cause as the referee has found, and as plainly appears from the evidence, but for a reason wholly different.

The new contract certainly did not give to the plaintiff any right to pursue an improper course of conduct, even if he had been guilty of it before under the other contract, or because he had been guilty of it formerly.

It did not operate as a license on the part of the defendant to the plaintiff, to violate his duty under the contract to his employer. And I do not understand the referee as holding any such principle. But the fact that the defendant entered into a second contract with the plaintiff for the same service after the first year, coupled with the fact, that he was dismissed for another and different cause, may be properly referred to as strong and convincing evidence that this conduct was not regarded by the defendant in the same light *467then, that it is claimed to be now. It suggests very strongly, the probabilities of interested after-thought, exaggerating eccentricities of conduct into improprieties and errors of undue magnitude and proportions. The other ground on which it is claimed the defendant had the right to discharge, and upon which they did, in fact, dismiss and discharge the plaintiff, that of packing and sending out imperfect files to the injury of tire business, the referee has found did not exist in fact. The evidence upon this subject was quite conflicting ; but the referee had the right to give credence to the plaintiff’s testimony on the subject. He was certainly, according to all the testimony, the most competent judge, and had no interest in injuring the business while he remained there. His testimony, if credible, is entirely satisfactory on that question. He was before the referee who had tire best opportunity of judging of his competency and honesty. Under such circumstances, this court will not interfere to set aside the finding of a referee on a question of fact, unless the error is quite apparent. But I am wholly unable to see how the ruling of the referee receiving the letters written by third persons to the witness Dorsheimer and to the plaintiff, in evidence in the plaintiff’s favor, can be justified. They were letters, generally commendatory, of the plaintiff’s skill as a manufacturer of files; of the excellence of the articles formerly manufactured by him, and of plaintiff’s character for integrity..

Dorsheimer was; as it appears, one of the defendant’s principal stockholders, and the plaintiff had given him a reference to some of these persons who had written a portion of these letters in answer to inquiries' from Dorsheimer, respecting the defendant’s skill, the character of his work, &c. The other letters were written to the plaintiff himself. The fact that these references had been given by the plaintiff and answers received to the inquiries was drawn out by the plaintiff on the cross-examination of Dorsheimer. The plaintiff then offered the letters received by Dorsheimer in answer to his inquiries, and also those received by himself as *468evidence, and they were received against the defendant’s objection. I am not aware of any rule of evidence upon which this ruling can stand. These letters were the mere expressions of opinions of third persons, on the subject of the reputation of the plaintiff as a manufacturer, and of his previous work. It is claimed by the plaintiff’s counsel, that it was competent, and was within the issue made by the defendant’s answer. The defendant had set up in the answer by way of defence, amongst other things, that the plaintiff was unfit to superintend the business of manufacturing files, and was entirely incompetent to manage the operatives, and to conduct the business economically, or successfully-; that he was visionary wasteful and extravagant, and failed in judgment and business qualifications. The questions raised by this part of the answer, were in respect to the plaintiff’s fitness and competency in point of fact, and not in respect to his reputation for skill or fitness to manage and carry on business successfully as in respect to his skill as a manufacturer. This evidence was entirely incompetent on those questions. It was the mere declarations of third persons, and nothing more than hearsay. As the referee held it competent evidence against the defendant’s objection, it is impossible to say that he was not, and could not have been influenced by it. The presumption is, that it had its legitimate influence, as pertinent, and competent evidence. It is quite apparent, that as material and competent evidence, it bore directly upon the question whether the defendant had good and sufficient cause for discharging the plaintiff. For, although the plaintiff had a contingent interest in the earnings and profits of the enterprise, still he was not a partner with the defendant, and the business was not his business. He was, in fact, an employe, and his interest in the business was by way of compensation only. It was clearly an implied part of his contract and undertaking, that he possessed the requisite skill and fitness for the superior position and authority, which was secured to him by such contract. In all other respects, I am of the opinion that the rulings and decisions *469of the referee were correct. Bat for this error the judgment must be reversed, and a new trial awarded.

Judgment reversed, new trial granted, costs to abide event. Hr. Justice Talcott, having been engaged as counsel on the trial, did not sit.