72 N.Y.S. 177 | N.Y. App. Div. | 1901
In disposing of this appeal on the record as it is presented to us we are compelled to reverse the judgment.
The parties entered into a written agreement in December, 1900, • providing for the employment of the plaintiff by the defendant as a traveling salesman for the year 1901. The agreement provided that the plaintiff should receive certain commissions on goods sold by him and on all accounts opened through, his influence in certain territory; that he should be allowed a drawing -account of $2,750 for the year, to be drawn against in equal monthly installments; and that there should be no contention as to why the plaintiff did not.
The performance of the agreement on plaintiff’s part was guaranteed apparently by one Daniel Stern, and under it he was allowed to draw the monthly installments for the first three months. His draft for the month of April, however, was not honored, and this action was brought to recover it, being the sum of $229.16. The complaint alleges that by the terms of the contract the plaintiff became entitled to draw it on the 30tli of April, 1901. The answer of the defendant pleads the general issue and, among other defenses, that the plaintiff had been discharged from the defendant’s service under the agreement, prior to April 30, 1901.
On the trial the plaintiff was the only witness examined. He proved the execution of the contract, which was duly received in evidence, and also proved the demand for the monthly installment on April thirtieth, and the defendant’s refusal to pay it. This established a prima facie case, which entitled the'plaintiff to recover (Weinberg v. Blum, 13 Daly, 399) if the contract was still alive, and the plaintiff had not been discharged on the date when the installment became due. This right to recover is wholly independent, of the amount of commissions earned at the time, and no proof of such earnings was necessary. The defendant, on plaintiff’s cross-examination, proved that during the month of April some friction was developed between the parties, growing out of a dispute as to. the construction of the contract, and that on the twenty-seventh of' April the defendant caused a paper' to be served on the plaintiff. This paper was produced and marked for identification, but it was not read in evidence and its contents are not disclosed. We cannot assume that it is a formal discharge, still less that it is framed to take effect prior to April thirtieth. The defendant further proved on such cross-examination that his conduct towards the plaintiff in the latter part of the month of April was so far hostile and unfriendly as to justify the latter in treating it as a discharge had he so elected (Bundick v. Strauss,. 51 App. Div. 612), but it is evident that dim
The plaintiff having established a prima .faciie case to recover under the precise terms of the agreement, and there being no evidence of any other breach of the agreement than the refusal to pay the installment in ¡suit, the nonsuit was manifestly improper.
The judgment should be reversed.
Goodrich, P. J., Woodward, Jenks and Sewell, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.
