#### Pasquale Bartholdi, Appellant, *v.*Richard J. Hickson, Respondent.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Contracts — interpretation of — employment as “ coat tailor or foreman.”

Where by a written contract defendant agreed to employ plaintiff as coat tailor or foreman for a year, plaintiff to devote the necessary time to see that the coats were delivered on time by the tailors and to certify to their good workmanship arid to make coats when not otherwise employed as foreman, the proper construction of the contract depends upon the sense in which “ coat tailor or foreman” was used, and that is a question of fact for the jury.

While as a rule the interpretation of a written instrument is a question of law for the court, yet where the interpretation depends upon the sense in which the words are used, or the sense in which the promissor had reason to believe the promisee understood them, the question is one of law and fact.

Appeal by the plaintiff from a judgment of the City Court of the city of ISTew York, dismissing the complaint at *246the close of the plaintiff’s case, and from an order denying a motion for a new trial, in an action on a contract of employment for wrongful discharge.

Jacob Friedman, for appellant.

■Samuel L. Weyl (Max D. Steuer, of counsel), for respondent.

Lehmah, 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 twenty-five dollars 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.

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 in*247tended to describe alternative forms of employment but one form of employment which the parties describe as “ coat tailor or foreman,” since 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. “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 id. 463.

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

Seabury and Page, JJ., concur. .

Judgment reversed and a new trial ordered, with costs to appellant to abide event.