App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. rooms from Monday, Sept. 30th. The salary to be paid you is $40.00 per week for the first four weeks. At the end of that time. if your management of our press work is artistically and financially satisfactory, your salary will be $50 per week thereafter. This arrangement to be for one year under satne conditions and to continue after first year at same salary; each party reserving the right to cancel this agreement at two weeks' notice after first year. Trusting that this will prove mutually satisfactory. "Yours very truly, "FRANK LESLIE'S PUBLISHING HOUSE, On the trial before a jury the case was submitted upon the question of whether the employer, in discharging the plaintiff at the end of four months, was acting in good faith. There was a conflict of evidence, and the jury found in favor of the plaintiff, bringing in a verdict for the difference between what the plaintiff would have received had he been employed under the contract and what he actually received in other employment during the year. From the judgment, and an order denying a motion for a new trial, appeal comes to this court; and the defendant now urges that the complaint should have been dismissed upon the motion of counsel, upon the pleadings, for the reason that it does not state facts sufficient to constitute a cause of action. The attention of the court is called to the fact that the contract was made with "Frank Leslie's Publishing House, Frederick L. Colver, Manager," while Frederick L. Colver personally is made defendant in this action. But we are of opinion that this question was not raised by the motion of defendant's counsel, and that the case having been tried upon another theory the defendant cannot be heard to urge this objection at this time. If the defendant's counsel had moved to dismiss the complaint on the ground that "it does not state facts sufficient to constitute a cause of action," as he did, and had rested upon that proposition, he might be heard on this appeal upon the point which he suggests, but he did not do this. On the contrary, he urged upon the court, not the point which he now brings forward, but that "the question as to the services under the contract mentioned in the complaint being satisfactory or unsatisfactory, was one exclusively for defendant, the employer, and not to be passed upon by court or SECOND DEPARTMENT, MARCH TERM, 1899. [Vol. 38. jury." It was the denial of this motion by the court to which defendant's counsel excepted; and, as it practically admits that the defendant was the employer, he is now estopped from asserting a different attitude to the plaintiff. Where counsel specially calls attention to the point to be passed upon, he cannot, upon appeal, urge a different point under cover of the exception to the denial of the motion made. We are not called upon to decide whether a mere defect of parties, which might be raised by demurrer, would be sufficient to give the defendant any rights on appeal on a motion to dismiss the complaint upon the ground that it does not contain facts sufficient to constitute a cause of action, and we go no further than to decide that, in the case at bar, the defendant is estopped from asserting that he is not the proper party to be charged with damages in this action. It may be conceded that the employer was the sole judge as to whether the management of the press work by the plaintiff was "artistically and financially satisfactory," but this power, vested in the employer by the contract, must be exercised in good faith. He cannot discharge the plaintiff for the purpose of reducing expenses, and arbitrarily say that he was not satisfied with the artistic and financial management of defendant's press room by the plaintiff. The dissatisfaction must be real, and it must be sufficient to justify the dismissal of the plaintiff. Mere fault-finding by hired critics, coupled with suggestions from the employer, are not sufficient, unless the employer is so far displeased with the general character of the work performed that he would be, in good conscience, justified in dismissing him. There was a conflict of evidence upon this point. The defendant alleges that he had some conversation with the plaintiff in which he called attention to the unsatisfactory character of the work, and that the plaintiff asked the privilege of resigning. The trial court charged that if the jury accepted this version of the matter the verdict must be for the defendant. On the other hand, the plaintiff testified that the defendant, in dismissing him, stated that the reason for the dismissal was the necessity of reducing expenses; and there was evidence to show that, after the dismissal of the plaintiff, the work of the press room was carried on by one of defendant's witnesses, who performed plaintiff's services without any additional compensation, thus reducing the cost of App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. the press room about fifty dollars per week. It was also in evidence that while the plaintiff did not receive the promised advance at the end of four weeks, he was, prior to his dismissal, given an advance of ten dollars per week. On this point the defendant testified that it was in consideration of night work, while the plaintiff insists that it was in pursuance of the original contract, the increase having been deferred because of the complaint of the defendant that business was not good enough to warrant it at the end of the four weeks' period. In short, there were two distinct versions of the controversy. Under one of them the defendant was entitled to a verdict, and under the other the plaintiff was as clearly entitled to recover; and the jury, after a charge of which the defendant cannot fairly complain, has determined the facts in favor of the plaintiff. Unless there are errors in the case, the judgment must be affirmed. This cause may be distinguished from that class of cases referred to by Judge DANFORTH in Duplex Safety Boiler Co. v. Garden (101 N. Y. 387), where the contract is "to gratify taste, serve personal convenience, or satisfy individual preference," by the fact, as determined by the jury, that the defendant did not rely upon his dissatisfaction with the plaintiff's work in dismissing him, but predicated his action upon a desire to reduce the cost of operating the printing establishment. Moreover, the fact that the defendant may have found fault or been dissatisfied with a particular piece of work cannot be relied upon to show such a degree of dissatisfaction as to justify the dismissal of an otherwise competent man, unless the fact of such unsatisfactory piece of work was the cause of dismissal. The fair construction of the contract between the parties is that if the plaintiff on a four weeks' trial is "artistically and financially satisfactory," he is to have employment for one year at an advanced salary. The fact that he served the defendant for a period of four months, that he was given an increase of wages, either in pursuance of the contract or for extra labor, is some evidence that he was "artistically and financially satisfactory," and the dismissal of the plaintiff at the end of four months, for the purpose of reducing expenses, is not fulfilling the contract in good faith, and good faith is essential in all contracts. As was said in the case of Smith v. Robson (148 N. Y. 252, 255): "It was reasonable that the defendant should be in a position, if in SECOND DEPARTMENT, MARCH TERM, 1899. [Vol. 38. good faith he felt that the plaintiff did not come up to the requirements of the situation, to discharge him. If the defendant had shown to the satisfaction of the jury that, acting in good faith, he had discharged the plaintiff because he was dissatisfied, and that his action was not arbitrary and capricious, he could not have been held liable." That was a case in which the plaintiff was employed under a contract for a theatrical season, to play different parts, much as the plaintiff in this action was employed to do a variety of printing, and the court there held that this was not a contract made to "gratify taste, serve personal convenience, or satisfy individual preference.' We find no error in the admission of evidence, nor in the charge of the court to the jury, and we have reached the conclusion that the judgment should be affirmed, with costs. Judgment and order unanimously affirmed, with costs. ALFRED BRUMME, Respondent, v. WILLIAM HEROD, Appellant. Contract to pay debts "out of the proceeds of sale" of property conveyed to the promisor - liability of the promisor thereunder · the fact that a creditor holds a mortgage to secure his claim is immaterial. One Denike, who was engaged in the erection of fifteen houses, being financially embarrassed, conveyed such houses to William Herod, one of his creditors, who agreed as follows: * * * "I hereby agree, for and in consideration of one dollar to me in hand paid by Thomas S. Denike, receipt of which is hereby acknowledged, to pay all claims for materials and labor furnished and delivered for the erection of fifteen buildings in course of erection and all notes given to (by) said Thomas Denike out of the proceeds of sale of said fifteen houses and lots, and after paying all indebtedness to said William Herod due from said T. S. Denike, then to divide any surplus between Herod and Denike. In consideration of the above the said Denike agrees to deed said fifteen houses and lots to said William Herod, subject to all mortgages and incumbrances and liens, and, paying them, to divide, as above, any balance. "WILLIAM HEROD, Held, that the contract was not ambiguous; that Herod's liability was limited by the terms of the contract to the payment of the claims for materials and labor App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. out of the proceeds of the sale, and that his promise was not an original and absolute one to pay all such claims; That, hence, it was necessary for a person seeking to recover from Herod the value of materials furnished to Denike before the execution of the contract, to allege in his complaint a sale of the property or that the defendant had not used due diligence to dispose of the same. Semble, that the foreclosure by the materialman of mortgages given to him by Denike as collateral to the debt, and the entry of a judgment for deficiency, did not operate to deprive him of his character of a materialman. APPEAL by the defendant, William Herod, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of November, 1898, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant's demurrer to the complaint. Augustus M. Price, for the appellant. John J. Leary, for the respondent. WOODWARD, J.: In the year 1893 Thomas S. Denike was engaged in the erection of fifteen houses. Finding himself in a financially embarrassed situation, he went to the defendant, one of his creditors, and suggested that he take a deed of the premises and complete the buildings, selling them and using the money realized on the sale to pay the bills for materials and labor furnished. The defendant agreed to the proposal, and the deed was executed, transferring the property to the defendant, the following agreement being entered into between the parties: "BROOKLYN, N. Y., October 18th, 1893. "I hereby agree for and in consideration of one dollar to me in hand paid by Thomas S. Denike, receipt of which is hereby acknowledged, to pay all claims for materials and labor furnished and delivered for the erection of fifteen buildings in course of erection situate on the west side of Troy avenue, between Butler street and Park place, and all notes given to (by) said Thomas Denike, out of the proceeds of sale of said fifteen houses and lots, and after paying all indebtedness to said William Herod due from said T. S. Denike, then to divide any surplus between Herod and Denike. In |