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N. J.)

GANNON v. BRADY BRASS CO.

judge to nonsuit the plaintiff. It is plainly without merit. The evidence was sufficient to support a verdict for the plaintiff, and the motion to nonsuit was properly denied.

727

take John [meaning plaintiff] on for another year at the same price;" and that Mr. Onslow said, "All right." On cross-examination, when asked to state exactly what Mr. Brady had said, he testified as follows: "We all rose at the same time, and Mr. Brady said: 'Well, Harry, it is understood, then, that The judgment of the court below will be we take John on again at the same money affirmed.

All other assignments of error argued have been considered, but none have been found requiring reversal.

(82 N. J. L. 411)

GANNON v. BRADY BRASS CO.

for another year.""

On March 25, 1910, plaintiff was discharged by Mr. Brady, who informed plaintiff that he would be paid a month's salary from that date, thus giving him the 30 days notice re

(Court of Errors and Appeals of New Jersey. quired by the contract of September 1, 1908.

Nov. 20, 1911.)

(Syllabus by the Court.)

1. CONTRACTS (§ 176*)-CONSTRUCTION-QUESTION FOR JURY.

Where a contract has not been reduced to formal language, either written or oral, the intention of the parties to make a contract and its terms, if made, are to be gathered from what the parties did and said, and this is normally a question of fact for the jury.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 767-770; Dec. Dig. § 176.*] 2. APPEAL AND ERROR (§ 273*)-REVIEW-EX

CEPTIONS-SUFFICIENCY.

An exception that is too broad, in that it includes the whole charge, and too narrow, in that it gives no notice of the alleged error, will not support an assignment.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1620-1630; Dec. Dig. § 273.*]

Error to Circuit Court, Hudson County. Action by John W. Gannon against the Brady Brass Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The writ in this cause reviews a judgment, on verdict, in favor of the plaintiff, recovered in an action for damages, because of discharge from employment under an alleged contract of October 4, 1909, for one year. The errors assigned are on exceptions to rulings on evidence, to refusal to nonsuit the plaintiff or direct a verdict in favor of the defendant, and to the charge.

Plaintiff entered the employ of the defendant as salesman, under contract, made September 1, 1908, at a salary of $200 per month, payable semimonthly; the contract being subject to cancellation on 30 days' notice from either party. On October 4, 1909, Mr. Brady, the president of the defendant, Harry Onslow, one of its directors, and the plaintiff had luncheon together, and the plaintiff's relations with the defendant were discussed. As to the conversation at this luncheon, the version of the plaintiff must be taken as true. He testified that the relative merits of compensating a salesman by commission or salary were talked over, and, without attempting to state the rest of the conversation at the luncheon, he testified that, as the party rose from the table, Mr. Brady turned to Mr. Onslow, to Mr. Onslow, and said, "Well, Harry, it is understood that we will

Suit was begun in August, 1910, and at the trial plaintiff claimed that he had been unable to secure employment. The verdict was for $1,033.33, being a sum equivalent to $200 a month from April 25, to October 1, 1910.

The case of the plaintiff was not rested on any defect in the 30 days notice. His counsel distinctly repudiated any such contention, and the case was therefore put to

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the jury by the judge, on the theory that the plaintiff could recover only on their finding a new contract, made October 4, 1909, in substitution of the old contract. The jury were distinctly told that the plaintiff could not recover on the old contract.

The foregoing condensed statement of the case is taken from the brief of counsel for the plaintiff in error.

Gilbert Collins, for plaintiff in error. Tennant & Haight, for defendant in error.

GARRISON, J. (after stating the facts as above). When the motion to nonsuit the plaintiff was made, the testimony that had been given warranted a finding that on October 4, 1909, the plaintiff had been for over 14 months in the employ of the Brady Brass Company at $200 a month, subject to discharge on 30 days notice; that on the day in question he was called into the office of Mr. Brady, the president of the company, to uiscuss some change in the terms of his employment; that while this subject was under discussion Mr. Onslow, one of the directors of the company, came in, to whom Mr. Brady stated the subject under discussion, and proposed that it be continued at luncheon, which was done. During this conversation, Brady, in answer to Onslow's inquiry as to what the plaintiff "was getting," replied, "Twenty-four hundred," and at the conclusion of the luncheon the remarks quoted in the statement that precedes this opinion were made, respecting the result of the conference. On the evening of the same day, Mr. Brady wrote to the plaintiff, confirming what had happened at the luncheon as "our understanding of even date," and saying, "Our company understands that for the year beginning this month you will concentrate your best efforts," etc.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Upon this testimony and other proofs, | ditional ground that the testimony was such showing that the company were not dissatis- that the court should have determined the fied with the plaintiff, and had no thought terms of the contract. Indeed, he could not of discharging him, it was open to the ju- consistently have laid such a ground, bery to find that, as some change in the terms cause his contention throughout was that of plaintiff's employment was the express there was a lack of proof as to the making subject of the conference and of the dis- of a new contract and its terms-a contencussion that preceded it, and as the na- tion that, if true as to the jury, must be ture of his work and his annual compensa- equally true as to the court. The trial judge tion remained unchanged, the only term in could not know, and was not obliged to diwhich any change was made was that the vine, any such point from the mere excepmonthly employment, with its incident as to tion to a part of the language in which he discharge, was changed into a straight em- submitted the question to the jury. ployment for one year. If there had been Counsel also lays hold of the expression previously no relations between the parties, "implied contract," used by the court in its a jury could hardly avoid finding a yearly charge, and argues that it was not technicalcontract of this nature. Such previous rela ly apt, as applied to an executory contract tion was, however, only one of many circum- to be gathered inferentially from the words stances to be considered in determining what and conduct of the parties. The judge, howconclusion the parties came to. If the sub-ever, was talking to a jury, not dictating a ject under discussion was whether the plaintiff should be discharged, or should be continued in the company's employment, Mr. Brady's declaration would be strongly indicative of a mere continuance of the old relation; but if the continuance of the plaintiff's employment was assumed, and the subject of the conference was a change in its terms, Mr. Brady's declaration was entirely consistent with the notion that some change had been made, and, if so, was somewhat persuasive that an annual employment had been agreed upon, since otherwise there was no change. The question was submitted to the jury, over the defendant's motion for a direction, and an exception that raised the same question as that presented by the motion for a nonsuit, and for the direction of a verdict.

For reasons sufficiently indicated, we think it was not error to deny these motions.

[1] The cases holding that, where no attempt has been made to reduce the terms of a contract to formal language, the intention of the parties, as gathered from what they said and did, is a question of fact for the jury are very numerous. Tatterson v. Suffolk Mfg. Co., 106 Mass. 56, may stand for the class.

In the present case, however, a preliminary question was whether or not any con

legal thesis, and he told the jury that by an implied contract he meant. "one to be gathered by implication, presumption, or inference from the course of dealing of the parties, and from the circumstances of the case."

This accords with one of the definitions given by Webster, and was sufficiently accurate in the context in which it was used.

[2] Moreover, counsel did not direct the attention of the trial court to the verbal criticism that he now advances. His exception was "to what your honor said with regard to the right of the jury to find an implied contract from the language used by Mr. Brady to Mr. Onslow." This was in effect an exception to the whole charge, all of which was concerned in one way or another with the contract so described; but the point now made, viz., that the word "implied" was improperly employed, was in no way brought to the judge's notice.

We find no error in the charge or in rulings upon evidence that should lead to a reversal.

The judgment of the Hudson circuit is affirmed.

(82 N. J. L. 474) PHELPS v. FUCHS & LANG MFG. CO.

tract was made on October 4, 1909. This, (Court of Errors and Appeals of New Jersey.

under the testimony, was clearly a question for the jury.

It may be that, if the making of a new contract on that date was admitted, and the sole question was, what were its terms, as evidenced by a single unequivocal declaration? a court question was thereby presented. We need not consider this question, however, since no such point was made at the trial. Counsel, it is true, objected to a part of the charge, on the ground that there was no question for the jury, just as he moved for the direction of a verdict on the same ground; but he nowhere suggested as an ad

Nov. 20, 1911.)

(Syllabus by the Court.)

1. MASTER AND SERVANT (§ 29*)-RELATIONABANDONMENT BY SERVANT-ACTION FOR DISCHARGE.

damages for an unlawful discharge. It appearThe plaintiff brought his action to recover ed that he was employed as chief clerk in defendant's factory, subject to the supervision and direction of defendant's superintendent; that he had an altercation with another clerk who disputed his authority, and the superintendent, having heard the explanation of plaintiff, informed him that he had exceeeded his authority, and followed this by turning over to another whereupon the plaintiff said, "Well, I will quit,' clerk the key to the cash drawer and leaving

N. J.)

PHELPS v. FUCHS & LANG MFG. CO.

the factory, taking with him certain of his personal effects, and did not return to work. Held, that plaintiff's subsequent disclaimer of any intent to quit defendant's service was not sufficient to overcome his declared intention to quit and his subsequent acts in execution of such purpose, and that a nonsuit allowed upon

this state of facts was not error.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 28, 29; Dec. Dig. § 29.*] 2. APPEAL AND ERROR (§ 232*)-PRESENTATION OF QUESTION IN TRIAL COURT-ADMISSIBILITY OF EVIDENCE.

An appellate court will not hear reasons in favor of the competency of testimony overruled at the trial which were not disclosed to the trial court, and are first suggested on the argument of the writ of error issued to review such action of the trial court.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 232.*]

(Additional Syllabus by Editorial Staff.) 3. WITNESSES (§ 268*)-CROSS-EXAMINATIONSCOPE AND EXTENT.

In an action for wrongful discharge from employment, the issue being whether plaintiff was discharged or quit voluntarily, where plaintiff testified that he carried away his notarial seal because he wanted to use it at home, a question on cross-examination whether he had anything that he intended to use it for that evening was proper.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 931-948; Dec. Dig. § 268.*]

Error to Circuit Court, Bergen County. Action by Austin H. Phelps against the Fuchs & Lang Manufacturing Company. Judgment for defendant, and plaintiff brings

error. Affirmed.

Mackay & Mackay, for plaintiff in error. Collins & Corbin, for defendant in error.

729

he didn't know. I then said, 'Well, I will quit.'" After waiting until the arrival of the next train from New York and some time between 10 and 11 o'clock, he left the factory, taking with him the certificate of his appointment as notary public and his notarial seal, and turned over to another employé the key to the cash drawer. On the afternoon of the same day he went to the New York office and saw the treasurer of the defendant company, and told him "I could not carry on the business of the office to their satisfaction or mine if I didn't have the authority over the clerks, and if they were going to do as they pleased, why, I could not maintain any discipline there at

all." The treasurer advised him to see Mr. Ford, which he did on the 13th of April, and explained what he had told the shipping clerk to do and what the clerk had refused to do, and then, without any previous reference to his relation to the company, said to Mr. Ford that he had not quit, but on the contrary had been discharged, and to this Mr. Ford replied that he had not been discharged, but had voluntarily quit the service of the defendant. From the time plaintiff left the factory just after he told Mr. Ford he would quit, until this conversation, nearly three days later, he had not returned to the factory nor attempted to serve the defendant. There is no evidence to support the averment in the plaintiff's declaration that he had been discharged unless such an inference can be drawn from Mr. Ford's denial of a discharge, and his claim that plaintiff had voluntarily quit defendant's service. Such an inference cannot be properly drawn from anything said or done by Mr. Ford, taken in connection with the previous conduct of the plaintiff, who had attempted to exercise an authority over another employé, which Mr. Ford, under whose directions and supervision he had agreed to serve, denied he possessed, and he then informed Mr. Ford that he would quit the service of the company, apparently for the reason that he was denied authority to direct the services of the shipping clerk. He followed his statement that he would quit, by turning over to another clerk his key to the cash drawer and leaving the factory, taking with him his notarial seal and certificate. He then went to the treasurer of the company for the avowed purpose of having the direction of Mr. Ford overruled, saying, in effect, that he could not successfully serve the company unless he was given an authority which Mr. Ford refused, and having failed in this purpose, he did not accept the situation and return, or attempt to return, to his work, but remained away. All that Ford did was to insist that the plaintiff had quit, and if such insistence was justified by plaintiff's words and conduct, and we conclude it was, no illegal discharge

BERGEN, J. [1] The plaintiff's case, as set up in his declaration, is based upon his alleged unlawful discharge from service by the defendant, in violation of a written agreement of employment existing between the plaintiff and defendant. By the terms of the contract the defendant agreed to employ plaintiff for a period of five years beginning July 1, 1908, at the rate of $30 per week, and plaintiff agreed to devote his entirę time during that period to the business of the defendant, as chief clerk in its factory at Rutherford, N. J., under the supervision and direction of Mr. Ford, the defendant's superintendent, or of any of defendant's officers. The trial court ordered The trial court ordered that a judgment of nonsuit be entered at the close of plaintiff's case, to which direction the plaintiff excepted, and a bill of exceptions being sealed, assigned error thereon. The case made by the plaintiff was as follows: On April 11, 1910, he had an altercation with defendant's shipping clerk, and being asked by Mr. Ford, by telephone from the New York office, about the matter, he gave his version of the situation, after which, the plaintiff testifies, "he told me I was exceeding my authority; and I asked him if he was coming out that day; he said *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

could be implied from facts which conclu- | fendant. It was quite relevant to show that sively demonstrated that the plaintiff had the purpose, which he subsequently declared, abandoned the service. for removing the seal from the factory was not in fact true and this, the evidence admitted, had a tendency to show. The judgment will be affirmed, with costs.

ASHBY v. YETTER.

(79 N. J. E. 196)

Our conclusion is that the case proved by the plaintiff failed to show a discharge; on the contrary it conclusively shows that the plaintiff quit the service of the defendant of his own motion because he was denied authority over the shipping clerk without which he was unwilling to remain in defendant's service. His subsequent repent- (Court of Errors and Appeals of New Jersey. ance, if he did repent, would not destroy the effect of his previous notice to the defendant that he would quit its service, following it by acts indicating the execution of such purpose, in which the defendant apparently acquiesced. The nonsuit was properly allowed, and we find no error in the action of the trial judge in that regard.

Nov. 20, 1911.)

(Syllabus by the Court.)

1. DEEDS (§ 70*)-VALIDITY-FRAUD.

Complainant, while suffering from nervous prostration and incompetent to manage his tations of defendant to convey real estate and business affairs, was induced by misrepresenpersonal property to him for a grossly inadequate consideration. Held, that such conveyance was procured by fraud and was properly set aside.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. § 70.*]

2. CANCELLATION OF INSTRUMENTS (§ 34*)

LACHES.

Under the circumstances of this case, complainant's right to a reconveyance and accounting held not barred by laches.

of Instruments, Cent. Dig. §§ 49-54; Dec. Dig. [Ed. Note.-For other cases, see Cancellation § 34.*]

Appeal from Court of Chancery.

Bill by Winfield S. Ashby, by next friend, against Frederick P. Yetter. Decree for complainant, and defendant appeals. Affirmed. See, also, 78 Atl. 799.

[2] The next assignment of error argued relates to the following question which the trial court overruled: "Q. As head clerk, what were your duties in this place?" It is urged in support of the competency of this question that its purpose "was to show that the defendant in error had required the plaintiff in error to perform other duties than those mentioned in the contract, and to show what control he exercised over the employés of the defendant in error." No such purpose was disclosed to the trial court, the question was there urged upon the ground that the contract "did not say what the particular duties are, in detail." The trial court refused the question upon the ground that the contract did define plaintiff's duties, and a reference to the contract will support the conclusion of the court. The plaintiff's claim is rested upon an alleged illegal discharge, and he testified that he performed all his duties under the contract, so it was quite immaterial what those duties were in that aspect of the case, but the trial court having considered the reasons offered in support of the legality of the question, and determined its propriety in view of the reason given, it is now too late, for the first time in an appellate court, to offer other reasons not suggested to the trialed and totally unfit to look after his propjudge.

[3] The only remaining assignment argued challenges the action of the trial court in permitting defendant's counsel to ask the plaintiff, on cross-examination, the question: "Q. You didn't have anything that you expected to use it for that evening that you knew of, did you?" The only objection interposed was that the question was not relevant. We are of opinion that this cross-examination was proper and competent, for plaintiff had testified that he carried his notarial seal, to the using of which the question was directed, away from the factory because he wanted to use it at home, and that he did not intend by such act to indicate that he had quit the service of the de

On appeal from a decree advised by Vice Chancellor Walker, who filed the following opinion:

"The bill was filed by Winfield S. Ashby, who alleged that during January, 1902, he was the owner of certain real estate and personal property at Atlantic City, N. J.; that during that month he became broken in health and a sufferer from nervous prostration and melancholia and became mentally infirm and unable to grasp business situations, and was thereafter for a long space of time mentally and physically incapacitat

erty and business; that in this situation the defendant, Yetter, requested the complainant to convey to him his real and personal property in Atlantic City, representing that he would take charge of the same and conduct and manage it for the complainant and account to him for the proceeds of the property. The bill was filed March 6, 1907. Thereafter Ashby became insane, and on September 30, 1907, an order was made appointing Jesse B. Ashby, the complainant's wife, as his next friend, to prosecute the suit. Ashby himself, being insane, was not a witness.

"Mrs. Ashby testified that Yetter came to the house several times to see her husband, and she was present at one conversation in

N. J.)

ASHBY v. YETTER

731

which Yetter told her that he realized that | resulting from it was the moving cause of her husband was a sick man and not able to take care of his affairs, and he (Yetter) was trying to persuade him to turn them over to him so that he could look out for them until such time as he (Mr. Ashby) would be able to take them up again.

his putting his property in the hands of Yetter to manage for him. I am persuaded that the conveyance by Yetter to Ashby was by way of security for the faithful performance of the trust he assumed and was not a consideration for the conveyance to him by Ashby of his property.

"A decree for a reconveyance and accounting will be made in accordance with the prayer of the complainant's bill."

Wescott & Wescott, for appellant. Garrison & Voorhees, for respondent.

"The result of negotiations between Ashby and Yetter were that Ashby conveyed all his Atlantic City property to Yetter by three deeds for the real estate and a bill of sale for the personal property, March 18, 1902. It is significant that each deed recites a consideration of $1, and the bill of sale $1 and other valuable consideration. On the same day Yetter conveyed to Ashby three certain building lots on the outskirts of Philadelphia; the consideration being expressed to be $1 and other good and valuable consideration. The equities in the real estate conveyed by Ashby to Yetter amounted approximately to $10,000, and the personal property to approximately $2,400, making in all approximately $12,400, which Yetter took over into his possession and control. The lots conveyed by Yetter were worth something between $500 and $900, the latter figures at the very outside. Ashby became decidedly aberrated after the transaction, and Yetter knew it, and this, to my mind, explains how it was that Yetter wrote Mrs. Ashby on July 8, 1902, nearly four months after he had taken title, for permission to ship certain of the personal property he had become possessed of from Mr. Ashby, to a Mr. McCarroll. This to my mind is inconsistent with Yetter's present claim of ownership in himself of the property acquired through the Ashby convey-quate to support such a finding, the decree ances, and his (Yetter's) attempted explanation only confirms that belief.

PARKER, J. (after stating the facts as above). We reach the same result as that to which the learned vice chancellor was led by his consideration of the evidence, but for reasons not wholly identical with those expressed by him. There is some difficulty in resting the decree for reconveyance on the terms of an express trust, because that trust was not evidenced by any writing as required by the third section of the statute of frauds. McVay v. McVay, 43 N. J. Eq. 47, 10 Atl. 178; Newkirk v. Place, 47 N. J. Eq. 477, 21 Atl. 124; Aller v. Crouter, 64 N. J. Eq. 381, 391, 54 Atl. 426; Coffey v. Sullivan, 63 N. J. Eq. 296, 49 Atl. 520. The theory of a resulting trust arising from nonpayment of consideration was not relied on, and would have been untenable. Hogan v. Jaques, 19 N. J. Eq. 123, 97 Am. Dec. 644; Coffey v. Sullivan, supra. It may be that as there was no objection to the parol evidence tending to show an express trust, and that evidence, if properly to be considered, was ade

may be upheld on this ground, though in Coffey v. Sullivan this court intimated that the trust itself would be invalidated and not merely the parol evidence to establish it. 63 N. J. Eq. 304, 49 Atl. 520.

"The defendant lays stress upon a memorandum written and signed by Mr. Ashby on March 8, 1902, 20 days before the deeds passed, in which Mr. Ashby says he that day sold [1] We need not go further into this branch to Mr. Yetter all his interests in Atlantic of the cause, because we are satisfied on a City. The explanation is that the note was reading of the evidence that the conveyances an authority to Yetter to go to Atlantic City from Ashby to Yetter were procured by and take charge of Ashby's business in ad- fraud, and that procurement facilitated by vance of the conveyances and is entirely con- Ashby's mental condition at the time. He sistent with the complainant's claim that the was a nervous wreck with his mentality imtransfer of property was in trust. Besides paired. He had been in the insane asylum the probabilities of the case being entirely some years before, and shortly after the bill with the complainant, Yetter's appearance was filed went there again. Defendant, a on the witness stand and manner of testify-shrewd and apparently a somewhat unprinciing was decidedly against him.

"The conveyances, being entirely regular and valid on their face, import legality, and the burden is upon the complainant to overcome that presumption. To my mind the complainant has discharged the burden of proof. I hold in this case that the testimony does not warrant a finding that the complainant was non compos mentis at the time he made and consummated the transaction, but it shows that he was suffering from a severe mental disorder, and that his unfortunate condition and the mental weakness

pled real estate speculator, seeing Ashby's condition, took advantage of it, and to increase his anxiety and worry, and thus induce him to get rid of his property, told him that there were judgments against him, that he could not show himself in Atlantic City, that the mortgages were being foreclosed or about to be foreclosed.

The grossly inadequate consideration is of itself evidence of fraud. Worth v. Watts, 76 N. J. Eq. 299, 305, 74 Atl. 434. Superadding the misrepresentations of fact, we have no difficulty in finding that the deeds

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