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Harrington v. First National Bank of Chittenango.

by the directors of the defendant, by acquiscence, with knowledge that the plaintiff was in service of the defendant as their teller or clerk, the contract became valid by such ratification, and the plaintiff is entitled to recover damages for being so discharged. And he afterward charged them, "that if the contract was made by the president and was ratified," as above stated, the plaintiff was entitled to recover for seven months' wages, as damages, at the rate of $840 per year," all of which was excepted to. It will be remembered he had before also charged them, "that sufficient grounds existed for plaintiff's discharge, if the grounds had been acted upon when they occurred, or the grounds had been stated when he was discharged." I think this whole charge, though by no means intended, was calculated to mislead the jury, and that it is not sound.

The plaintiff's discharge was ratified precisely in the same manner that his employment was. If the employment was ratified, the discharge was also. The judge concedes there was sufficient grounds for the discharge; he concedes the discharge to have been made by the defendants; yet holds the law to be, upon this hypothesis, that if the employment was in form for a year, the plaintiff can recover his salary, even after his discharge, for the remainder of the year. I do not concur in these views. I think there was another condition in the contract, a condition that is always implied in every contract of the kind. Whether it was for a month, a year, a definite or indefinite time, it was subject to the right of the employer to dismiss the employee for sufficient cause; and if sufficient cause for dismissal exists against the employee, it is a forfeiture of future salary. One of the considerations, which enter into the contract between the employer and employee, is good conduct by the employee, at least so good as not to furnish sufficient cause for dismissal; and a failure so to perform amounts to a forfeiture of the contract, and justifies a discharge. The case of Ridgway v. Hungerford Market Co., supra, was an employment by express contract, at a salary of £200 per annum, payable quarterly. His employment commenced on the 10th June, 1830; he was continued to the 17th April, 1833, when he was dismissed; he offered and was willing to remain in service. He brought this action in December, 1853, for three-quarters salary. It was contended by the defendants, that being dismissed for sufficient cause, he was not entitled to any portion of his current salary. Lord Ch.

Harrington v. First National Bank of Chittenango.

J. DENMAN tried the cause, and submitted it as a fact to the jury whether the cause for discharge was sufficient. The jury found the cause sufficient. The issue, then, as a question of law, was precisely the same as the question in the case at bar; and thus it came before the Court of King's Bench. The Lord Chief Justice said: "The jury having found the cause of discharge sufficient, the court must so hold," and he added, "Turner v. Robinson, 5 Barn. & Adol. 789, and many other cases, have shown that if a party hired for a certain time so conduct himself that he cannot give the consideration for his salary, he shall forfeit the current salary even for the time for which he has served." PATTISON, J., in the same case concurring, says: "By his own act he gives the defendants the power of displacing him." And COLERIDGE, J., said: “Although a party be hired for a given time, the master is justified in dismissing him for misconduct; and, in that case, he cannot recover pro rata." The case of Turner v. Robinson, 25 Eng. Com. L. 257, was a like case of a servant employed at a salary of £80 per annum, dismissed for misconduct before the year expired, and who sued for his wages for the year, and was nonsuited on the trial; and, upon a rule to show cause, the case was brought before the full bench. PARKE, J., who gave the opinion, said (assuming the employment to be for a year): "Having violated his duty before the year expired, so as to prevent the defendants from having his services for the whole year, he cannot recover wages pro rata." So, too, in the case of Spain v. Arnott, 2 Stark. N. P. 227, it was held by Lord ELLENBOROUGH, "that if a servant, hired for a year, refuse to obey his masters's orders, the master is justified in dismissing him before the end of the year, and the servant cannot recover any wages." See, also, Baillie v. Kell, 4 Bing. N. C. 638. This same rule is laid down by Chitty on Cont. (10th Am. Ed., by Perkins) 628, 629. See, also, Amor v. Fearon, 9 Ad. & Ell. 551. I find nothing to shake the authority of these, and a great number of other cases to the same effect. I think, therefore, the refusal to charge as requested was error. Where the servant is hired for a time certain, and dismissed without sufficient cause, then the rule, it is conceded, is as charged by the learned judge. Parsons, in his treatise on Contracts, adopts the same rule, as the established law, vol. 1, pp. 520, 521, and notes and cases cited.

I think there was another error in the charge of the learned judge, in his fourth proposition, as explained by the seventh

In

Harrington v. First National Bank of Chittenango,

the fourth proposition he charged the jury that if the president had made such a contract with the plaintiff as plaintiff claims, and that contract was subsequently ratified by the directors of the defendant by the acquiescence with knowledge that the plaintiff was in the service of the defendant as its teller or clerk, the contract became valid by such ratification, and the plaintiff "is entitled to recover damages for being so discharged." If this charge carried to the mind of the jury that what was specified in it constituted a legal ratification (as to my mind clearly it did), it was erroneous. The jury could well so understand. The language of the charge had a clear tendency to make them understand that a ratification by the defendant, by acquiescence, not with knowledge that the president had employed him, but with knowledge that he was in their service as their teller or clerk, and that an acquiescence in that knowledge was a ratification of the president's contract, of which employment by the president there is no evidence of the knowledge. The evidence that he was in their service adds nothing to the evidence of ratification, but the contrary. He had been for years in their employment, performing the same duties, under an express contract made by themselves, made by resolution, made at a specified consideration. The legal presumption, then, is, that he was continuing on under that contract until the defendants were informed to the contrary. But by the explanation made by the judge of his meaning, in his seventh proposition, it is clear that his definition of what constitutes a legal ratification, especially as applied to this case, was erroneous. He says: "The defendant acquiesced in the employment of the plaintiff by their president, if they knew he was acting in their bank as teller or clerk, and made no objection to his serving there at or after the defendant's directors had a meeting at their bank." To make a ratification by the principal of the unauthorized act of an agent good, it must be made with a full knowledge of the facts which affect the rights of the principal. This main feature of ratification is omitted. This knowledge was a question for the jury, not for the judge. The facts, if they were as assumed by the judge (as I think they were not), were greatly in conflict, and were insufficient to constitute a valid ratification. Nixon v. Palmer, 8 N. Y. 398; Brass v. Worth, 40 Barb. 648. There was not only no direct evidence of knowledge by the defendants of the president's hiring the plaintiff, but the president's testimony,

Chatham Nat. Bank of New York v. Merchants' Nat. Bank of West Virginia. to the contrary, is as follows: "I don't think I communicated to any of the directors about the hiring of him." "No action of the board of directors, in regard to the increase of wages to him." "There was no meeting of the finance committee after January and prior to July of that year." The vice-president swears he knew nothing of the hiring by the president until the plaintiff was discharged. Daniel Gates, a director, swears to the same, and the only knowledge the cashier had was the fact that he found, on the 29th of June, 1870, that the plaintiff had credited himself on the books of the bank for April and May, $70 each.

Without noticing other objections, I think those that have been discussed are sufficient to justify the ordering a new trial, costs to abide the event.

MILLER, P. J., and PARKER, J., concurred in the result.

New trial ordered.

CHATHAM NATIONAL BANK OF NEW YORK V. MERCHANTS' NATIONAL BANK OF WEST VIRGINIA, appellant.

(4 Thompson & Cook, 196.)

National bank-" Citizen" of State where located-Entry of appearance-Removal of cause from State to Federal court.

In an action by a National bank of New York against a National bank of West Virginia, held, that the defendant was not deprived of the right to demand a removal of the cause from the State court to a Federal court. National banks are "citizens" of the State in which they are organized and located.* Defendant served a notice of appearance on December 15th, but did not file a petition for the removal of the cause from the State to the Federal court until January 7th, the petition stating that defendant then entered its appearance and had not done so before. Held, a valid compliance with the Federal statute requiring the defendant, "at the time of entering his appearance in the State court," to file his petition.

* As to removal of actions against National banks, see Cooke v. State National Bank, ante, 698; Bird's Executors v. Cockrem, ante, p. 284. By the Rev. Stats., § 640, (which is the act of July 27, 1868), National banks are expressly excluded from its provisions.

For judicial purposes National banks are regarded as citizens of the States where they are located. Davis v. Cook, ante, p. 656; Cooke v. State National Bank. But in National Park Bank v. Gunst, post, and note, it was decided that a National bank was a foreign corporation within the act requiring security for

costs.

Chatham Nat. Bank of New York v. Merchants' Nat. Bank of West Virginia.

A

PPEAL by defendant from an order denying a motion on the part of defendant for the removal of the cause to the United States Circuit Court for the Southern District of New York. The action was brought by the Chatham National Bank of the city of New York against the Merchants' National Bank of West Virginia to recover the proceeds, amounting to $2,242.83, of various checks alleged to have been received by defendant for collection for plaintiff. The plaintiff is a corporation created and existing by the laws of the State of New York and of the United States, and is located and doing business in New York city. The defendant is a corporation created and existing under the laws of West Virginia and of the United States, and is located and doing business at Wheeling, in that State. Defendant filed a petition stating the above facts and demanding a removal of the cause to the Federal court. The petition was denied and defendant appealed. The remaining facts appear in the opinion.

Chapman, Scott & Crowell, for appellant.

J. H. & B. F. Watson, for respondent.

DANIELS, J. The sworn petition of the defendant stated that the plaintiff was a corporation or banking association, created and existing under and by the laws of the State of New York and of the United States, located and doing business at the city of New York, in the State of New York, and at the time of bringing the suit was, and still is, a citizen of the State of New York. This was not denied on the part of the plaintiff, and should for that reason be accepted as the truth; and, as such, it was sufficient to present a case within the act of Congress providing for the removal of causes into the Circuit Court of the United States, so far as the right depended upon that circumstance.

It is claimed, however, that the name by which the plaintiff has been incorporated indicates it to be an association formed for bank, ing purposes under the laws of the United States providing for the creation and circulation of a National currency; and that circumstance, added to the fact stated in the petition, that it is a corpora tion or banking association created and existing under the laws of the United States as well as of this State, sufficiently warrants that conclusion.

But that does not divest the defendant of the right to insist upon

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