Appeal from Trial Term, New York County.
Action by John H. Freit, by David W. Rockmore, his guardian ad litem, against August Belmont. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed, and new trial granted.
[117 N.Y.S. 657] Charles Goldzier, for appellant.
William Rand, Jr. (Alfred W. Haywood, Jr., on the brief), for respondent.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
The action is brought to recover damages for an alleged libel of the plaintiff in his vocation and calling of riding running horses in exercising them for racing. On the 10th of May, 1900, the defendant was conducting a racing stable, and on that day the plaintiff, who was then 12 years of age, with the consent of his mother, manifested by a certificate in writing indorsed thereon, signed an agreement with the defendant by which he attempted to bind himself to serve the defendant in the latter's racing stable for a term of five years from that day, on condition that the defendant should, as compensation for his services, during the first two years clothe and board him, and in addition pay him $10 per month during the third year, and $15 per month during the fourth and fifth years. The agreement was in duplicate. The defendant signed one, which was delivered to the plaintiff, and the plaintiff signed the other, which was delivered to the defendant. It was expressly provided therein that the defendant should have the right, at his option, to discharge the plaintiff and cancel the agreement at any time, and it was further provided that at the expiration of the term the defendant should have " first call" on the services of the plaintiff, should he desire to engage the plaintiff in any capacity in his racing stable; the compensation to be paid on such new employment " to be a just and reasonable one." On the 15th day of September, 1904, the defendant caused the following publication to be made in a newspaper called the " Racing Calendar," which had a circulation of about 1,500 issues per day in and about the city of New York, to wit:
" Exercise boy, John Freit, having left the employ of August Belmont, without consent or a written discharge, owners and trainers are hereby warned not to harbor or employ him, and attention is called to rule No. 152 of the rules of racing, which will be strictly enforced."
It is alleged in the complaint that this publication was made maliciously, with intent to injure the plaintiff in his good name and vocation as an " exercise boy," and to prevent him from securing employment in the occupation of a rider at racing stables, and that the defendant thereby meant and intended to have it understood by the readers of the article that the plaintiff was a person who could not be depended upon, and that he had been guilty of treachery to his employer in leaving without his consent or written discharge, and had violated his employer's confidence in breaking his agreement. The plaintiff further alleged that the publication was false, and that he had been deprived thereby of obtaining other employment. The answer of the defendant is, in effect a plea of justification.
The plaintiff entered the defendant's employ pursuant to the indenture. [117 N.Y.S. 658] On the 7th day of October, 1903, the defendant wrote the plaintiff's mother as follows:
" I am giving up my entire racing stable, and will therefore have no further need of the services of your son, John. I will, however, endeavor to get a good position for him elsewhere, provided you consent to it."
At the time of the original employment, and at this time, the mother of the plaintiff resided at Jersey City, N. J. Pursuant to the terms of the employment, the defendant was to board the plaintiff, and it is manifest that it was understood that the plaintiff was to be boarded at the racing stable, and not at his home. At the time this letter was written, the boy was at Morris Park race track, and had been there employed in exercising racing horses owned by the defendant. He evidently boarded and slept at the track. The plaintiff's mother received this letter the day after its date, and immediately went to the Morris Park race track, and on that day took her boy back to Jersey City, without having any further communication with the defendant, or with any one representing him, except to show the letter to defendant's representative at the track when she went there to take her boy away. On that day, the defendant finished the sale of his horses at Morris Park race track, and he discharged several other employes, and had no further use for the services of the plaintiff.
The principal question presented by the appeal arises on an exception to the refusal of the court to instruct the jury, as matter of law, that this letter, written by the defendant, constituted a discharge of the plaintiff, and was in effect an exercise of the defendant's right to discharge the plaintiff and cancel the agreement. We are not concerned with the validity of the agreement; but it is important to note that the defendant therein reserved the right to discharge the plaintiff at will, and that in this letter of October 7th he informed the plaintiff's mother that he was giving up his entire racing stable, and would have no further need of the services of her son, and manifested a willingness to endeavor, with her consent, to get him a position elsewhere. The plaintiff's mother, having acted upon this letter, and having gone to the place where her son was employed by the defendant, and having taken him home, we are of opinion that the defendant cannot now be heard to say that he did not intend to discharge the boy, and that he was not justified in notifying through the Racing Calendar those who would likely need the services of an " exercise boy" that the plaintiff left his employ without his consent or a written discharge.
It is claimed that the letter is ambiguous, and that it is susceptible of the construction that the defendant did not intend to release the plaintiff from his contract of employment for five years, and that the subsequent conduct of the parties and correspondence between them show that it was not understood as a discharge. We find in the record no evidence of conduct on the part of the plaintiff, or on the part of the mother, necessarily inconsistent with the plain inference that any person of ordinary intelligence would draw from this letter, namely, that the defendant intended to give notice to the plaintiff, through his mother, that he would no longer be bound by the indenture agreement. There is no suggestion in the letter with respect to the [117 N.Y.S. 659] board and clothing or wages of the boy for the remainder of the indentured term. The boy was under no obligation by virtue of the indenture to work for any one other than the defendant. The defendant did not reserve the right to let the plaintiff's services out to others. There had been no negotiations on that subject. The letter would ordinarily be understood as meaning, and manifestly defendant then intended it to mean, that he would have no further use for the services of the plaintiff; and as conclusive evidence of that fact, he stated that he was giving up his entire racing stable. He merely offered to assist the boy in getting another situation, provided the mother wished him to do so.
Stress is laid by the learned counsel for the defendant upon a letter which the defendant claims to have written to the plaintiff, under date of October 10, 1903, but which she denies having received until after she had secured other employment ...