145 N.Y.S. 827 | New York City Court | 1913
In this case the jury rendered a verdict in favor of the defendant. A motion was thereupon made to set the verdict aside as contrary to the law, contrary to the evidence, and upon all the grounds specified in section 999 of the Code of Civil Procedure. The facts, briefly stated, are as follows: The plaintiff was employed by the defendant as its agent long prior to April, 1911, and was receiving certain commissions from the defendant upon sales of coal made to certain customers of the plaintiff. Plaintiff claims that in April, 1911, the amount of commissions to which she was entitled was cut down to fifteen cents per ton on all egg, stove, broken and nut coal sold by plaintiff to her customers and ten cents per ton on all pea coal. This fact is not denied by the defendant. Whether or not there was sufficient evidence for the jury to base their verdict upon the fact that there had been a dis
“ Monday, February 13, 1911.
“ Mrs. Ida. Jackson,
“ 492 Wendover Avenue, New York:
“ My Dear Madam.—We have decided to discontinue your services as a saleswoman for us on March 1. We find that at the price coal has been sold and the commission we have been paying we are actually out of pocket on a number of your orders. This, as you can readily imagine, is not at all satisfactory.
“Yours truly,
“(Signed) Olin- J. Stephens,
“ President
A day or two after the letter was written the plaintiff saw Mr. Stephens and admitted having received this letter, and Mr. Stephens says that the conversation was as follows: “ Mrs. Jackson came into the
“ March 15, 1911.
“ Mrs. Ida Jackson,
“No. 492 Wendover Avenue, New York:
“ Dear Madam.— You are hereby notified that we have decided to discontinue your services as agent at the end of the month of March.
“Yours truly,
“ Olin J. Stephens,
“ President.”
A day or two after this letter was written the plaintiff called and the following conversation with Mr. Stephens took place: “ She said she was afraid she could not take away all her customers. I said I did not believe that she could, and she asked me would I not continue to pay her commission on those customers. Well, I said, in order to get the' thing settled and out of the way, as we did not care to be bothered with it, that we would not accept any new business from Mrs. Jackson after the first of April, 1911, but we would continue to pay her commission up to the, first of July. That would be for the months of April, May and June, in order to give her ample opportunity, if she were able to, to take any customers that she
“April 12, 1911.
“ Mrs. Ida Jackson,
“ 492 Wendover Avenue, New York:
“ Dear Madam.— In order that there may be no misunderstanding with regard to your position with this firm, we wish to notify you that we do not care to accept any new customers subsequent to April 1, 1911, and will discontinue paying you any commissions on any customers after July 1, 1911.
“ Yours truly,
“ Olin J. Stephens,
“ President
It is true that Mrs. Jackson denies that she was discharged, and claims she never had that last conversation with Mr. Stephens. Whether this is so or not is -clearly within the province of the jury and not of the court. Plaintiff, on cross-examination of Mr. Stephens, offered in evidence a little book which was marked Exhibit D, containing an entry in the witness’ handwriting that the commission on pea coal after April 1,1911, was to be ten cents per ton, but on domestic coal fifteen cents per ton. When the said witness’ attention was called to the entry in said Exhibit D, he stated “ that the commission which the plaintiff was to get applied to the commission which she was to receive between April 1 and July 1, 1911, and that the entry in said book was made about the middle of- March.” The plaintiff lays great stress upon this entry (plaintiff’s Exhibit D) to support her
Motion denied.