30 Misc. 601 | N.Y. App. Term. | 1900
Lead Opinion
The complaint proceeds upon a contract of employment alleged to have been entered into on or about June 1, 1895, by the terms of which the defendants employed the plaintiff as their agent, for the sale of certain goods imported by them, for the period of one year, at an annual salary of $2,000, payable in equal monthly payments at the end of each month, and that, in addition thereto, the plaintiff was to receive a commission of one and a half per cent, on the amount of the gross sales made by him, and reimbursement for all his traveling expenses. The complaint furthermore alleges that the plaintiff remained in the defendants’ employ under said contract from the said 1st day of June, 1895, to the 1st day of October, 1895; that for the period in question there became due to him for salary the sum of $666.64, and for percentages on gross sales the sum of $150'; that the defendants have1 paid the plaintiff the sum of $125, and that there is now due plaintiff a balance of $691.64. The answer is a general denial.
. The issue of fact raised by the pleadings, and submitted to the jury upon the evidence, was whether the plaintiff’s employment was at the hands of the defendants or not. According to the plain-' tiff’s testimony, his employment resulted from the defendants’ acceptance of his oral proposal, made on the said 1st day of June, 1895; and, at the conclusion of his direct examination, there was no room for the assumption, either from the documentary evidence so far as produced, or from the testimony itself, that the defendants, when employing him, acted 'on behalf of any other person, or were connected with any other firm. ■ On cross-examination the defendants sought to bring out evidence to the effect that in the month of
“New York, June 26, 1895.
“Messrs. Wesendonck, Lorenz & Co, City:
“ Dear Sirs — Enclosed you will find route list and names of the different hotels for Mr. McDonald’s western trip. Confirming the receipt of your advance of $150 as traveling expenses, we wish to say that for all further requirements Mr. McDonald is to write to you, and you would oblige me by making checks payable to 1?. F. McDonald, charging our account with their amounts. On Monday next I shall start on my eastern trip, and would ask you to have about $150 ready for me by Saturday, when I shall furnish you with route list, &e.
“We have engaged the services of Mr. Martin Thurston as salesman for the city, &c., at a salary of $1,500 per a. I would thank you for sending him check bi-monthly for his salary, charging our account with same.
“Tours very truly,
“Hashagen & Christinet.
“ Kindly let me have two traveler’s cards from one of the mercantile agencies — one for Mr. P. F. McDonald for the Western States and another one for myself for Eastern and Middle States. I should prefer Bradstreet’s to Dun’s.
“Tours truly, H. & C.”
It was likewise error for the trial justice to exclude evidence that certain payments by the defendants, to the plaintiff and Thurs-ton (in respect of which both of the latter gave testimony), were made at the request of Hashagen & Ohristinet. After the plaintiff had put in evidence the checks by which such payments were made, it was, in my opinion, competent.on the part of the defendants, as part of the res gestae, to show upon whose request the same were made. There is considerable force in the suggestion that these payments, unless explained, afford ground for the inference that the plaintiff was employed by the defendants. Certainly a very different aspect would have been put upon them had the defendants been permitted to show the relation which existed between them and the said firm touching the matters adverted to. The exclusion of all the evidence heretofore referred to, is sought to be justified, however, upon the ground that the plaintiff was not informed, nor was he in any manner apprised of the relations which are claimed to have existed between the defendants and Hashagen & Ohristinet, regarding the matters in controversy. But such testimony, by reason of its close connection with the principal question under investigation, i. e., whether or not the plaintiff was in the defendants’ employ, was, under the circumstances, admissible as original evidence, notwithstanding the plaintiff may not have had information respecting such situation. 1 Greenl. Ev. (13th ed.), § 108.
Aside from this, however, the letters of the plaintiff to the defendants, dated July 8, 1895, and July 20, 1895, respectively, requesting them to remit certain sums “ for expenses of account of Hashagen & Ohristinet,” and his telegram to them the day preceding the receipt of the defendants’ check for $150: “ Have you sent check? Answer -here at once by telegram,” show, in my opinion, that the plaintiff possessed more knowledge of the rela
It results from the views above expressed that the judgment must be reversed, and a new trial ordered, with costs to the appellants to abide the event.
O’Gorman, J., concurs.
Concurrence Opinion
(concurring). The letter of introduction from the Bradstreet Company, which states that "the plaintiff represented their subscribers, Wesendonck, Lorenz & Co., the defendants, was put in evidence by the plaintiff as'involving an admission on the part of the defendants tending to corroborate his claim that he had been employed by them. It appears that this letter was obtained by the defendants and transmitted by them to Hashagen & Christinet, by whom in turn it was delivered to the plaintiff. The defendants were, therefore, entitled to show the surrounding facts and circumstances in order to rebut the injurious inferences which might otherwise be drawn from the paper in question if unexplained. The letter of June 28, 1895, from Hashagen & Christinet to them, which is quoted in full- in the opinion
Judgment reversed and new trial ordered, with costs to appellants to abide event.