This action was brought to recover damages for a breach of contract of employment. On the 24th day of August, 1892, the plantiff wrote the defendant a letter in which he tendered his services to The Mail and Express for a period of two years, agreeing to write for publication in the paper not less than two columns a week on the progress of the world or other appropriate subjects, and in the line of the policy of the paper, at the compensation of fifty dollars per week, but reserving to himself the right to pursue his general business other than that of a literary character, and providing that "my services shall be satisfactory to the publishers, and in case they are not I shall be entitled to one week's notice." *Page 406 The offer thus presented by the letter was accepted by Shepard, as president of the defendant, and the plaintiff entered upon the service contracted for and continued to furnish articles for TheMail and Express until the 31st day of March, 1893, at which time there was delivered to him a letter, written by the secretary of the defendant, in which he was directed to discontinue his articles for the paper after a week's notice, in accordance with his agreement. This letter was written by the secretary pursuant to a resolution adopted at a meeting of the board of directors of the defendant, in which they unanimously resolved that the plaintiff's services be discontinued under the contract upon the ground that his services were not satisfactory. On the 12th day of April, thereafter, the plaintiff inclosed another article in manuscript to the defendant for publication under his contract, but the same was returned to him by the secretary of the company with a letter, in which reference was made to the former letter, discharging him and distinctly stating that the reason for the termination of his employment was that his services were unsatisfactory to the publishers and that his contract "was and is terminated for such cause." At the conclusion of the evidence taken upon the trial, the defendant, among other things, moved for a dismissal of the complaint upon the ground that, under the contract for employment, the defendant reserved the right to discharge him at any time if his services were unsatisfactory upon giving one week's notice. The motion was denied and an exception taken. The case was submitted to the jury and damages were awarded at the rate of $50 per week for the balance of the term of two years.
We think the motion should have been granted and that the exception taken to its denial requires a reversal of the judgment. The contract of employment, when carefully read, discloses with reasonable clearness what, we think, was the purpose and understanding of the parties. As we have stated, it was in the form of a letter in which the plaintiff offers his services for the period named at the rate of $50 a *Page 407 week. It was evidently his purpose and intention to bind himself to serve the company for that period of time for the consideration expressed. But, on the part of the publishers ofThe Mail and Express, it is very clear that they did not intend to be bound for a period longer than his services proved satisfactory, and that they expressly reserved the right to discharge him upon a week's notice. It is also apparent from a reading of the contract that the employment was not intended to be that of an ordinary servant to perform work, labor and services of an ordinary business or of a commercial nature. He was not called upon to perform the work of an ordinary reporter, writing up the general news of the day, but contracted to prepare articles on the progress of the world or other appropriate subjects in the line of the policy of the paper for the purpose, as expressed, of promoting the general interests of the paper, of aiding in its circulation and the obtaining of advertisements, by improving the quality of its contents. The evident design was that the articles should be interesting and attractive, involving art, taste, fancy and judgment. There is no provision in the contract in any manner limiting the publishers in the exercise of their judgment as to what is satisfactory, but if his services are unsatisfactory for any reason they are given the right to terminate the employment upon a week's notice, at any time they so elect.
In the case of Smith v. Robson (148 N.Y. 252) an important limitation is found in the contract that is not embraced in this. In that case the master had the power to discharge the employee if in good faith the master shall be satisfied of the incompetency of the employee, and we held that the question of good faith was one of fact, thus distinguishing it from the cases in which contracts are made to gratify taste, to serve personal convenience or individual preferences. An article printed in a paper or magazine may please one person and displease another. It may gratify the taste of one and become the subject of criticism and ridicule on the part of another. The plaintiff did not agree to satisfy a court or jury, but undertook to satisfy the publishers. It was their taste, their *Page 408 fancy, their interest and their judgment that was to be satisfied. It further appears that the plaintiff was paid in full to the time of his discharge and for the week for which the notice was given, and that the time for which the plaintiff seeks to recover in this action the contract was executory. It is not, therefore, a case of a completed contract in which work has been performed in an ordinary business, commercial or otherwise, such as the repairing of a boiler under a stipulation that it should not leak and that the owner should be satisfied that it was a success, or that the woodwork in a house should be polished, stained and rubbed in the best workmanlike manner under the supervision of a superintendent named, to the satisfaction of the owner. (Duplex Safety Boiler Co. v. Garden, 101 N.Y. 387;Doll v. Noble, 116 N.Y. 230.) We, consequently, think this case is brought within the line of the authorities distinguishable from the above cases, but recognized in them, involving taste, fancy, interest, personal satisfaction and judgment. (Zaleski v. Clark, 44 Conn. 218; Gibson v.Cranage, 39 Mich. 49; Hoffman v. Gallaher, 6 Daly, 42;Brown v. Foster, 113 Mass. 136; Tyler v. Ames, 6 Lans. 280; Glenny v. Lacy, 16 N.Y.S.R. 798; Brand v. Godwin, 15 Daly, 456, 465; Spring v. Ansonia Clock Co., 24 Hun, 175;Johnson v. Bindseil, 15 Daly, 492; S.C., 16 Daly, 232;Glyn v. Miner, 56 N.Y.S.R. 341; Hart v. Hart, 22 Barb. 606; Rossiter v. Cooper, 23 Vt. 522; Provost v. Harwood,29 Vt. 219.)
The judgment should be reversed and a new trial ordered, with costs to abide the event.