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ployed as foreman; but the proper construction of the contract depends on the sense in which the quoted words are used, which is for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 57, 58; Dec. Dig. § 43.*]

2. CONTRACTS (§ 176*)-CONSTRUCTION-QUESTION OF LAW AND FACT.

The interpretation of a written contract is a question of law, except where the interpretation depends on the sense in which the words are used, in which case it is a mixed question of law and fact.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 767–770, 917, 956, 979, 1041, 1097; Dec. Dig. § 176.*]

Appeal from City Court of New York, Trial Term.

Action by Pasquale Bartholdi against Richard J. Hickson. From a judgment of the City Court of the City of New York dismissing the complaint at the close of plaintiff's case, and from an order denying a new trial, in an action on contract of employment for wrongful discharge, plaintiff appeals. Reversed, and new trial ordered. See, also, 136 N. Y. Supp. 92.

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

Jacob Friedman, of New York City, for appellant.

Samuel L. Weyl of New York City (Max D. Steuer, of New York City, of counsel), for respondent.

LEHMAN, J. The plaintiff was employed by defendant under a written contract reading as follows:

"We agree to employ P. Bartholdi as coat tailor or foreman for a period of one year at a salary of $25 each week. He is to devote such time as is necessary to see that coats are delivered on. time by the tailors and to certify to the workmanship being of good standard when completed. He agrees to make coats when not otherwise employed by his duties as foreman."

The plaintiff showed that he worked as foreman for the defendant until his wife became ill. He then absented himself for a few days with defendant's permission. On his return he was told:

"Well, Bartholdi, you know those few days you were home the job as foreman was given away; but if you want to work as tailor cutter you can work." The plaintiff refused this work, and now brings suit for a wrongful discharge. The court dismissed the complaint, on the ground that the written contract gave the defendant the right to employ the plaintiff exclusively as coat tailor, without giving him any work as foreman. [1] While the words, "We agree to employ F. Bartholdi as coat tailor or foreman," apparently bear out the construction placed upon the contract by the trial justice, the contract must be read as a whole, and the subsequent words show an employment primarily as foreman, and an employment as coat tailor only when the plaintiff was "not otherwise employed by his duties as foreman." In conjunction with the latter part of the contract the words "as coat tailor or foreman" are open to the construction that they were not intended to describe alternative forms of employment, but one form of employment, which the parties describe as "coat tailor or foreman," since *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

neither term exactly fitted the duties to be performed. The proper construction of the contract, therefore, depends upon the sense in which these words were used, and this question should have been submitted to the jury.

[2] "As a rule, the interpretation of written instruments is with the court as a question of law; but when the interpretation depends upon the sense in which the words are used, or the sense in which the promisor had reason to believe the promisee understood them, a fact to be determined from the relation of the parties and the surrounding circumstances, it would seem that it becomes a mixed question of law and fact. It is not, then, a matter of interpretation merely, but the ascertainment of the minds and intents of the parties." White v. Hoyt, 73 N. Y. 505; Trustees of East Hampton v. Vail, 151 N. Y. 463, 45 N. E. 1030.

Judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

CARPENTER v. CHAPMAN et al.

(Supreme Court, Trial Term, Fulton County. April, 1912.)

1. SALES (8 429*)-BREACH OF WARRANTY-RIGHT OF ACTION-CONDITIONAL SALE.

Where a mare was delivered to the buyer at the time of sale, upon condition that title should remain in the seller until payment of the price stated in the note, the sale was conditional on payment of the whole price, so that an action for breach of warranty of soundness will not lie where the purchase-money note was not paid at maturity.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1224-1229; Dec. Dig. § 429.*]

2. SALES (§ 430*)-REMEDIES OF SELLER-RECOVERY OF PRICE-BREACH OF WARRANTY.

If there was a warranty as to the condition of a mare sold, and breach thereof, the mare dying, the seller could not recover the balance of the purchase-money note, in the buyer's action for breach of warranty.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 1230, 1231; Dec. Dig. § 430.*]

Action by Lillian Carpenter against B. L. Chapman and another, in which defendants counterclaimed. Complaint and counterclaim dismissed.

William W. Smith, of Johnstown, and Horton D. Wright, of Gloversville, for plaintiff.

Charles D. Thomas, of Herkimer, for defendants.

WHITMYER, J. [1] The plaintiff has brought this action to recover damages from defendants for breach of warranty as to the soundness of a mare sold by defendants to plaintiff. The purchase price was $150 of which $100 was paid at the time of the sale, and the balance, $50, was represented by a note, payable six months after its date. The mare was delivered to plaintiff, at the time of the

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 139 N.Y.S.-54

sale, upon the condition, set forth in the note, that the title was to remain in defendants until full payment of the purchase price. The note was not paid at maturity or at the time of the commencement of the action. The sale, then, was conditional on payment of the full price, so that the action for breach of warranty will not lie. Osborn v. Cantz, 60 N. Y. 540; English v. Hanford, 75 Hun, 428, 27 N. Y. Supp. 672; Benjamin on Sales, p. 865; Roach v. Curtis, 115 App. Div. 765, 101 N. Y. Supp. 333, affirmed 191 N. Y. 387, 84 N. E. 283; Levis v. Pope Motor Co., 202 N. Y. 402, 95 N. E. 815. The case of Pierce v. Hellenic American Realty Co., 76 Misc. Rep. 473, 135 N. Y. Supp. 605, cited by plaintiff, is not an authority here, since that was an action in tort. It is urged by plaintiff that the action is not for breach of warranty, but to rescind the sale. The complaint, however, is clearly for breach of warranty, and a recovery based on a rescission cannot be sustained. The complaint must therefore be dismissed, with costs.

[2] On the other hand, defendants are not entitled to judgment on their counterclaim, by which they seek to recover the balance due on the note. The reply of plaintiff, while admitting the delivery and nonpayment of the note, denies that any sum is due thereon, for the reason that the mare was not sound, and was not as warranted, and refers to the complaint for the other items of the warranty. The mare was breathing short and quick at the time of the sale. Being inexperienced, plaintiff called attention to this fact, whereupon defendants stated that it was due to what they called "a car cold," which was not serious, and urged plaintiff to take her, guaranteeing that she was a good work horse, that she would work in all harnesses, that nothing serious was the matter with her, and that, if she was not all right, it was no sale, and plaintiff could bring her back.

These warranties were made by defendants as an inducement to plaintiff to purchase, and plaintiff took the mare, relying upon them. They were worthless. Instead of growing better, the mare grew worse, without the fault of plaintiff, and died within five days thereafter in a barn on the road between Gloversville and Johnstown, to which place plaintiff's driver had succeeded in leading her in the effort to return her to the defendants. There was, then, a breach of the warranty made and given. Defendants claim, however, that the obligation to pay the note was absolute and survived the death of the horse. That would have been the case, if there had been no warranty and no breach. It is in this respect that the case here is distinguishable from Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626, and National Cash Register Co. v. South Bay Club House Association, 64 Misc. Rep. 125, 118 N. Y. Supp. 1044, cited by defendants in support of their claim.

Under the circumstances, the counterclaim must be dismissed. Findings may be prepared accordingly.

BRADY V. DONOHUE.

(Supreme Court, Appellate Term, First Department. February 7, 1913.) WITNESSES ( 144*)-TRANSACTIONS WITH DECEASED PERSONS EVIDENCE.

A plaintiff, suing an executrix for money had and received, based on the theory that he had been employed by testator at a weekly salary, is not competent to testify to such employment and an agreement that testator should retain a specified part thereof for plaintiff.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 625–643; Dec. Dig. § 144.*]

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action for money had and received by John Brady against Margaret A. Donohue, executrix of Philip Donohue, deceased. From a judgment for plaintiff, defendant appeals. Reversed, and new trial

ordered.

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

Daniel Daly, of New York City (Joseph H. Banigan, of New York City, of counsel), for appellant.

Moses Weill, of New York City, for respondent.

LEHMAN, J. Plaintiff claims that he was employed by defendant's testator as bartender at a salary of $14 per week, that he agreed that the decedent should retain $4 per week from his wages, and that each week he paid himself $10 from the cash receipts. Plaintiff produced three disinterested witnesses, who testify that the decedent told them at various times that he was retaining $4 per week from plaintiff's wages; otherwise, plaintiff would lose it all at horse racing.

The plaintiff's evidence as to the employment at $14 and the agreement that decedent was to retain $4 per week was clearly incompetent. With this evidence out of the case, there is no sufficient basis for a recovery. The testimony of the disinterested witnesses merely shows that at some time the decedent retained part of plaintiff's wages, but it does not show for how long a period the practice continued.

Judgment should be reversed, and a new trial ordered, with costs. to appellant to abide the event. All concur.

(79 Misc. Rep. 229.)

WEISS v. VALENSTEIN.

(Supreme Court, Appellate Term, First Department. February 7, 1913.) LANDLORD AND TENANT (§ 164*)-FALLING CEILING NEGLIGENCE.

A tenant cannot recover for injuries caused by a falling ceiling, even though she relied on the promise of the janitor to take care of it, having noticed that it was cracked, where there is no evidence of any duty by the owner other than a contract duty.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 630-641; Dec. Dig. § 164.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Annie Weiss against Julius Valenstein. Judgment for plaintiff, and defendant appeals. Reversed.

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

James I. Cuff, of New York City, for appellant.

L. B. Brodsky, of New York City, for respondent.

PAGE, J. This action is brought to recover damages for injuries sustained by the plaintiff by reason of the falling of a ceiling in her apartment, which she rented from the defendant. The evidence on behalf of the plaintiff was that the ceiling had been cracked for some time before it fell, and the plaintiff had notified the janitor, who was a brother of the defendant and in charge of the property, of its dangerous condition. The defendant's brother looked at it and said:

"I am responsible for the ceiling. It is in good condition for about two years yet, and don't worry."

After reviewing the evidence, the court charged the jury:

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"The question before you, gentlemen, is this: Whether this woman, Anna Weiss, had a conversation with this man, Louis Valenstein; whether she relied upon his promise to make good the repairs on that ceiling, and, relying upon that promise, she remained in those premises and was injured. Now, if you find from all the facts and circumstances in this case that there was a promise made by this man, Louis Valenstein, to Mrs. Weiss, that he would repair that ceiling, and that she, relying upon that promise, remained there, then you may find such verdict for the plaintiff," etc.

It is well-settled law that a tenant cannot recover from his landlord, under a contract to repair, damages for personal injuries sustained by reason of the unsafe condition of the premises. De Negro v. Christman, 77 Misc. Rep. 147, 151, 136 N. Y. Supp. 364. To support such a recovery there must appear to be some duty imposed by law upon the landlord independent of his contract. Schick v. Fleischhauer, 26 App. Div. 210, 49 N. Y. Supp. 962; Frank v. Mandel, 76 App. Div. 413, 78 N. Y. Supp. 855. The charge to the jury was erroneous, and the judgment must accordingly be reversed. A careful examination of the record fails to disclose any evidence from which it could be found that there was a duty in the defendant to repair the ceiling, other than a contractual one. Therefore no recovery for negligence can be supported by the testimony. The alleged representations of the defendant's janitor as to the safety of the apartment were clearly nothing more than expressions of opinion on his part, and it is not shown that as defendant's agent he had any authority to guarantee the safety of the premises. The motion of the defendant's attorney to dismiss the complaint should have been granted, as there was no evidence upon which the jury could find for the plaintiff.

The judgment appealed from is reversed, with costs, and the complaint dismissed, with costs. All concur.

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