Honesdale Glass Co. v. Storms , 125 Pa. 268 ( 1889 )

Own ion,

Mr. Justice Green:

The learned court below distinctly charged the jury that if the plaintiff had forfeited his back pay, that was the end of the defendants’ obligation, and that obligation could not be restored except by force of some subsequent agreement. The court also charged that if the back pay was not forfeited the plaintiff would have a light to recover it, unless he was cut off from doing so by some subsequent agreement. The defendants alleged, in the first place, that the back pay was forfeited by the plaintiff in consequence of his not serving out his time as apprentice, and that was one of the questions of fact for the jury to determine. It was entirely undisputed that the plaintiff had served the defendants for several years as apprentice and had a credit on their books for which he was entitled to a verdict unless it was forfeited by his breach of his contract of apprenticeship, or voluntarily given up by a subsequent agreement. The original contract or indenture was not given in evidence, as it was either lost or destroyed, and there was conflicting evidence as to when the service commenced and when it ended. All of this was necessarily for the jury and they have decided it in the plaintiff’s favor.

The principal contention was upon the effect of a subsequent agreement for the plaintiff’s re-employment. This was in writing and it contained a recital that the plaintiff was an apprentice to the defendants for four and one half years from March 1, 1882, and that ho had left the defendants’ employment and thus forfeited all claims on the defendants, and then proceeded to express a new contract for the plaintiff’s reemployment for one year from November 1,1885, upon certain terms mentioned. This contract the plaintiff performed out to the end of the time, but when the defendants tendered him a small balance of $48.61, claiming that was all they owed him., he declined to receive it claiming that they owed him the full amount of his back pay, to wit, 1531.82. This the company refused to pay and relied upon the second contract as excluding him from the right to recover it. If that contract prevails, the contention of the defendants is sustained and the plaintiff could recover no part of the back pay- It is true, the facts which would defeat his right to recover the back pay, are a mere matter of recital in this contract, but as they would be material to, and would, in fact, be a part of ilie consideration of the new contract, they are an essential portion of it.

In reply to this contract, the plaintiff says he was induced to sign it by means of a positive promise, made to him at and immediately before the execution of the agreement, that if he would sign it he should be paid the whole amount of his back pay. This is denied by Weston, who prepared the contract and obtained the plaintiff’s signature to it, but it is testified to by the plaintiff, by his father, mother and sister, and also by Henderson, who was the subscribing witness and a disinterested person. The witness Stevens testified that he was present when the paper was signed, but he did not attest it and knew nothing about Henderson’s presence, and he says nothing one way or the other as to what w*as alleged by the plaintiff and his witnesses, in regard to the promise made by Weston concerning the back pay. On the one side, therefore, is the paper itself and the testimony of Weston; and on the other, is the testimony of the plaintiff and Henderson, as to what was said at the moment of execution, and the corroborating testimony of the plaintiff’s father, mother and sister, as to Weston’s promise made either at the time of, or very shortly before, the execution. If the promise was made, and by that means the plaintiff’s signature was obtained, it was, of course, a fraud to set up the contract afterwards against his claim for back pay. In that aspect of the case it comes within the very numerous decisions of this court which hold substantially that when the execution of an instrument has been obtained by means of a fraud, or where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed and without which it would not have been executed, parol evidence may be given to prove the fraud, though it contradict the instrument. Some of these cases are the following: Greenawalt v. Kohne, 85 Pa. 369; Hoopes v. Beale, 90 Pa. 82; Hartley’s App., 103 Pa. 23; Phillips v. Meily, 106 Pa. 537; Walker v. France, 112 Pa. 203; Cullmans v. Lindsay, 114 Pa. 167; Ott v. Oyer, 106 Pa. 6; Thomas v. Loose, 114 Pa. 35. Of course, in all this class of cases, the evidence must be clear, precise and indubitable;— not indubitable in the sense that there must bo no opposing testimony, but in the sense that it must carry a clear conviction of its truth, as we said in Hartley’s App., 103 Pa. 23. The evidence must also be sufficient to move the conscience of a chancellor to reform the instrument, as we have said many times. In the present case the evidence was given to the jury with instructions in accordance with the above cited decisions, and the jury has found for the plaintiff, thus establishing the fraud.

It only remains to consider whether there was evidence sufficient to warrant its submission to the jury. George W. Storms, the plaintiff, testified, after relating at considerable length the efforts of Weston to get him to sign the paper and his own hesitancy to do so, as follows: “ Q. What did Mr. Weston say to you in the store at the time you signed this paper ? A. I walked in and bid him the time of evening and told him I had come up and would like to see that paper and he said, 4 Here is the paper, sign it,’ and he said, 4 If you do not sign that paper now, you will forfeit all your back money, and if you do sign that paper you will get all your money just as soon as you serve this one year, all of your four years back money.’ And I asked him if he had a copy and he said he had not, but Mr. Stevens would give me a copy any time I wanted it. And he told me to take the paper and read it, and I could not read the paper, but I went down to the store and Mr. Henderson was sitting there, and he looked at it and he told me that the paper was all right as far as he understood it.” He had previously testified to the controversy about the back pay, and that on one occasion when Weston wanted him to sign the paper, he had expressed his unwillingness to sign a paper he did not understand, and asked for a copy; that then Weston, in reply to a suggestion that they should take it over to the house where his father and mother and sister were, proposed that he would go along, and they accordingly went over together and then talked about the paper. Henderson testified that he went to the store with Storms and the paper was shown to him and he read it. He was asked: “ Q. What was said with reference to Mr. Storms coming hack? What did Mr. Weston say? A. Well Mr. Storms spoke to him about signing the paper and he gave it to him to look at it, and Mr. Storms said he would like to have a copy, and Mr. Weston said he had something to do besides bothering with glassblowers. He could sign that paper and go to work and get his money back, and if he did not sign it he would never get another day’s work in the factory and would never get a cent of his back money.” “Q. You stated that Mr. Weston said that if he signed this paper he would get all his back money? A. Yes, sir.” There was much other testimony by this Avitness giving the details of the transaction but it is not necessary to repeat it as the portion quoted is the most material part of it. As to what took place at the house, Jacob Storms, the plaintiff’s father, testified: “ When my boy’s time Avas up he quit. After the boy quit Mr. Weston came down to the house and then he had the paper on his own side. And he came down to our house and stood right in front of the table and he said: ‘ I want your boy to sign that paper for one year and a feAV months more, and I will give him one of the best places in the factory.’ And my wife said: ‘ Has that anything to do Avith his four years back money, if he signs that paper ? ’ And Mr. Weston said, ‘ No not at all, but if he does not sign it, see what your boy will lose. And not only your boy, but see what we will lose.’ And my wife and two daughters Avere there at the time. Q. What did he say about his back money ? A. He said if he did not sign that paper he Avould lose all his back money, but if he signed it everything Avill be all right.” The plaintiff’s mother testified that Weston came to the house with a paper for George to sign, and, being asked what was said, replied: “ He said that George must sign that paper and go back to work or lose his back money, and he said to me, 1 Talk to the boy and ask him to go back and coax him to go back.’ He said to me, ‘ Tell your boy to sign that paper and go back to work, or else he Avill lose his back money.’ Q. Did he say anything about his getting the best place in the shop ? A. I asked Mr. Weston if George signed the paper, and Avent back to work for another year, if that had anything to do Avith losing the four years back money, and Mr. Weston said, no, that at the end of the year he should get his back money in full.” Elizabeth Storms, the plaintiff’s sister, having stated that Weston came to the house, was asked: “ Q. What did Mr. Weston say in the house? A. He brought the paper there and told George to sign that paper, and George said he would not, and Mr. Weston said if he signed that paper he would get all his back money and the best place in the factory, and if he did not sign that paper he would lose all his back money.” From the sister’s testimony it would seem that George was in the room when the conversation took place. The father and mother do not say whether or not he was then present. George said he went out a few minutes while Weston was talking to his parents, but it is a fair inference from all the testimony that this conversation took place .on the same evening the paper was sighed, .or very shortly before. But, however that may be, the testimony of all these witnesses is clear, precise, positive, very definite, and, if the witnesses are believed, indubitable in its character. We know of no reason to disbelieve the witnesses except that they differ from Weston, but the jury were the judges of their credibility and they believed them.

Moreover, the probabilities of the ease are strongly in the plaintiff’s favor. The whole dispute was in reference to the back pay. Admittedly, the plaintiff had served the defendants, as an apprentice, his whole time except a year and some months, even according to Weston’s testimony. They finally agreed that he should serve one year more, leaving out the odd months, and the defendants would then regard the service as complete for the whole term. This being so, why should the plaintiff not have his full pay ? The defendants had received the full consideration for the full pay, why should they not make the payment? Because, say the defendants, the new agreement did not provide for it, and contains recitals that the plaintiff had forfeited his claims on the company. While this would be a good answer, if it was quite clear that such was the real contract of the parties, the very dispute between them is whether the execution of such an agreement, certainly very hard in its terms, was not procured by means of a promise that the back money should be paid. The proof is exceedingly strong that such was the fact. It was, according to the witnesses, accompanied by a threat that if he did not sign he would lose all his back pay, so that it was the very point in controversy; and it is very difficult to believe that if this was the subject of dispute up to the moment of execution, the plaintiff would all at once abandon his whole claim and agree to give another whole year’s service for nothing but the small pay of an apprentice, and thus complete the term of his apprenticeship without receiving any part of the large amount he had already earned. Such a conclusion would be contrary to reason, would be highly injurious to the plaintiff, and is certainly"1 opposed to the greatly preponderating weight of the testimony.

The company was evidently contracting for the completion of the term of service, according to their view as to what that term was. The plaintiff, claiming he had already completed the service, was reluctant to make any new contract inconsistent with his view of that subject. This being so, the parties made mutual concessions, the company abandoning the four odd months, over the year, and the plaintiff agreeing to work one more year. The subject of the new contract, therefore, apparently was, the determination of the term of service. This being the case, it is almost if not quite impossible to understand why the plaintiff should agree not only to complete the time of his service as apprentice, but also to abandon his entire claim for compensation for a full term’s service. It is curious to observe, in this connection, that the new contract, while it recites that the original term agreed upon was four and one half years from March 1, 1882, “ thus breaking his agreement and forfeiting all his claims on said company,” does not proceed to declare the forfeiture, or contain any agreement that the back pay shall be surrendered. So far as this recital is concerned, it is certainly consistent with the idea of a mere statement that a forfeiture had been incurred but would be condoned. At any rate the recital is not followed up by any expressed or necessarily implied agreement by the plaintiff to surrender his back pay. The last clause of the contract which relates to the payment of the year’s wages and says it shall be in full of all demands, is too indefinite to be regarded as an explicit surrender of the back pay. It could only serve such a purpose by way of a trap, and would require very clear evidence that it was explained to and so understood by the plaintiff, before it could with any justice receive such an interpretation. The great bulk of the evidence is in direct opposition to such a theory, and the contract itself does not speak in clear terms to the contrary. The court below was right in submitting the case to the jury, and the assignments of error are therefore not sustained.

Judgment affirmed.