208 A.D. 317 | N.Y. App. Div. | 1924
The plaintiff sued upon an alleged oral agreement to pay him a weekly salary plus ten per cent commission on the gross amount of sales made-by or through the procurement of the plaintiff. All the salary has been paid, and this action was brought for the commissions. The defendant denied that there was any agreement except to pay a weekly salary. • The defendant’s liability was, therefore, predicated on a clear issue of fact, namely, whether or
It further appears that although by his complaint the plaintiff claimed commissions on sales made up to October 1, 1919, he was allowed to recover commissions on sales made after such date, without the complaint having been amended, and over the objection and exception of defendant to the admission of evidence of such sales. As was said in Walrath v. Hanover Fire Ins. Co. (216 N. Y. 220, 225): “A party must recover not only according to his proofs, but according to his pleadings.”
The foregoing would require a new trial, but in addition it appears that the contract, as testified to by the plaintiff, in so far as' it concerns commissions, is so indefinite as to be unenforcible, and requires a dismissal of the complaint. The plaintiff testified regarding the terms of his employment as follows: “ The time after I left Mr. Burns and Mr. Hasse I called on Mr. Burns and he said, ‘ You can go to work for us and we will pay you $35 a week.’ ' I said to Mr. Burns: ‘ How can that be increased? ’ He said: ‘ We will pay you according to what you produce. We pay well, Mr. Blackwell.’ I said: How would you arrive at my compensation? ’ He said: ‘ We will pay ten per cent of your sales.’ ”
Later the plaintiff himself testified: “ My conversation with Mr. Burns was so indefinite I am not clear in my mind whether I am entitled to commissions, regardless of what salary and expenses are paid me, or whether I am entitled to commissions only after salary is deducted, after salary and expenses are deducted. For instance, suppose my sales were $10,000 and my salary was $1,000, possibly my commissions should be based on ten per cent of $9,000.”
The contract being oral and resting upon the testimony of the plaintiff, if he characterizes this alleged contract as indefinite this would seem a complete bar.
It is a vital and fundamental-attribute of a contract that it be definite as to its essential terms. In Bluemner v. Garvin (120
It follows that the judgment and order appealed from should be reversed, with costs, and the complaint dismissed, with costs.
Clarke, P. J., Smith, Merrell and Martin, JJ., concur.
Judgment and order reversed, with costs, and complaint dismissed, with costs.