Opinion
May 5, 1915.
B.W. Stryker, for the appellant.
Henry S. Kahn [ Rollin B. Sanford of counsel], for the respondent.
The plaintiff entered into a contract with the defendant to remove the ice from its icehouses at seventeen cents a ton, and while he was performing the contract, May 4, 1912, the defendant required him to discontinue the work. The action is brought to recover the prospective profits which the plaintiff might have earned if the contract had been performed by him. The jury found for the plaintiff $1,500 damages, and the court set the verdict aside and ordered a new trial upon the ground that it was against the weight of evidence, holding, in substance, that a full settlement had been made between the parties. The defendant contended that the contract was conditional that the plaintiff would not get drunk during the continuance of the work. Plaintiff denies that any such condition was in the contract.
About April twenty-first the defendant notified the plaintiff that he had been drunk and that the contract was terminated. The plaintiff pleaded to be permitted to continue the contract, promising that he would drink no more, and the defendant permitted him to continue. Upon May fourth the defendant notified the plaintiff to discontinue the work. The plaintiff's only reply was that he was ready to continue the contract. There is no substantial denial of the allegation that the plaintiff was discharged in April for drunkenness and was reinstated upon the agreement to keep sober. After the discharge the defendant purchased certain ice tools of the plaintiff and requested him to render an account so they could settle up. The plaintiff rendered four separate accounts, in none of which did he make any claim on account of his discharge.
May sixth plaintiff wrote defendant a letter stating the total amount of ice removed, the payments made and showing a balance due therefor of seventy-one dollars and thirty-six cents. He then refers to a boat which was employed by him, saying that he had paid Baldwin for April on account of it ninety-one dollars and fifty cents, which was very expensive, and that he is not inclined to pay for more than four days in May at two dollars and fifty cents a day; that the breaking down of the boat has caused him great trouble. He then speaks of certain ice tools which he had bought and paid for, costing fifty-six dollars; and that there is six dollars' worth of rope; five ice hooks worth four dollars and eighty-five cents, two summer bars at ten dollars, pulley blocks, etc., for buoys on the boat, sixty cents, making a total of twenty-one dollars and forty-five cents, and adds: "With these present goods this leaves a balance due me of $149.21." He then again refers to Baldwin's bill, says that the extra oil and goods in his bill are now on the boat; also twenty gallons of gasoline paid for, "together with Saturday's work of March 29th which totals $32, where I held the man at ice house under your instructions waiting for a boat which did not arrive, leaving a total which is due me added together, with the foregoing account, of $181.21. Baldwin has also charged me for meeting Dotter at Coeymans $2.50, also $1.50 extra for running to the Clifford ice house to measure ice, which should be added to the foregoing amount, leaving a total to me of $185.21."
He then says: "Now, Fred, I am in consultation with Mr. Solomon Co., and any good word that you might say would be highly appreciated for future recognition." He then speaks of some other ice tools, and continues: "As these goods have been used we will figure them in at $25.00 for entire lot now, making a balance due me, less goods which I have left for accommodation, a total of $210.21."
On May ninth he renders another bill, embracing substantially the same items, discounting the ice tools fifteen per cent, with a balance of $159.79. On May eleventh, at defendant's request, he incloses an itemized bill for the same amount. On May fourteenth he wrote that he had adjusted the differences with Baldwin, and sends the adjustment between him and Baldwin, showing $36.46 due Baldwin. He says in the letter: "When I left yacht last Sat. the cans were filled with oil, and gasoline tank was nearly filled, which I had paid for. Now, this bill of Baldwin's — I want to be fair. But will not pay for putting boat in running order, nor for oil gasoline his men have used on her. I paid his man all through the high water, making a total of $91.50 for month of Apr., and claim that the extra oil bill he presents is not for me to pay."
On May seventeenth the defendant's president met the plaintiff, saying he wanted to make a fair settlement with him, and gave him a check for $36.46, the amount shown due Baldwin from the plaintiff according to their settlement, and gave the plaintiff a check for $173.03, upon which was written the words "settlement in full," delivered it to the plaintiff, and he receipted the fourth bill, which was substantially like the other bills, but with more details. It has been lost, but there is no dispute about its contents. The plaintiff took the check to the bank that day, and for the first time, as he says, noticed the words "settlement in full." He then added, without the defendant's knowledge, the words "to May 4th," that being the date when he was discharged. The check was cashed by the plaintiff and the money used by him. From the time that the defendant told the plaintiff not to continue the work and he replied he was ready to go on, no claim was ever made by plaintiff for any damages or for any other matter outside of the accounts rendered except by the complaint served.
Whatever was due to the plaintiff was upon the contract for removing the ice and for the ice tools purchased and for the miscellaneous items which the plaintiff thought the defendant ought to pay on account of the contract and for which the defendant was willing to pay him. If the plaintiff claimed any other sum due him growing out of the contract itself, it was his duty to make the claim. It is clear the defendant, from the accounts rendered, believed, and was induced by the plaintiff to believe, that the settlement was in full of all matters growing out of the ice contract. And evidently the plaintiff so understood it. The plaintiff could not use the check or change its reading without the defendant's consent and then claim it was not a settlement in full. ( Wisner v. Schopp, 34 App. Div. 199; Nassoiy v. Tomlinson, 148 N.Y. 326; Fuller v. Kemp, 138 id. 231.)
The plaintiff, therefore, had no cause of action surviving after he used the check with knowledge of its contents. The verdict, therefore, was against the law and clearly against the evidence. The order setting it aside and granting a new trial is, therefore, affirmed, with costs to respondent.
All concurred.
Order affirmed, with costs to the respondent.