115 Misc. 499 | N.Y. App. Term. | 1921
The plaintiff herein has set forth in his complaint a cause of action for commissions earned as a salesman in the defendants’ employ and he has pleaded as a second cause of action a wrongful discharge under the contract of employment. At the trial a verdict was directed in favor of the plaintiff for the commissions claimed in the first cause of action but the trial justice dismissed the second cause of action. The plaintiff now appeals from the judgment in his favor on the ground that the trial justice erred in denying a motion to amend the first cause of action in order to increase the damages and in dismissing the second cause of action. The denial of the plaintiff’s motion to amend made at a second trial of the case was well within the discretion of the trial justice and the only serious question we need consider is whether the complaint sets forth a cause of action for wrongful discharge under the contract of employment. The complaint alleges “ that the plaintiff and the defendants entered into an agreement whereby the plaintiff agreed to continue in the employ of the defendants
It is to be noted that each party has made an express promise. The plaintiff agrees “ to continue in the employ of the defendants as salesman for the season of 1918 ” and the defendant agrees to pay certain commissions on orders procured by the plaintiff. The plaintiff’s promise is however purely illusory and can constitute no consideration for the defendants’ agreement if the plaintiff “has it in his power to keep his promise and yet escape performance of anything detrimental to himself or beneficial to the promisee.” Williston Cont. § 104. If the plaintiff has under his agreement the power to keep his promise to continue in the employ of the defendant and yet devote to his employment as much or as little time as he chooses, or in fact to perform no services under his employment, then the performance of his promise would clearly constitute no detriment to him and no benefit to the defendants, whereas if the plaintiff is bound to devote reasonable time and make reasonable efforts to procure orders, then his promise constitutes sufficient consideration for the defendants’ counter promise. Undoubtedly where a complaint alleges an employment for a definite purpose or to do a definite piece of work, the employee ordinarily impliedly agrees to devote to his employment sufficient time to accomplish the result for which he is employed, but I cannot find that in the present case such an-agreement can be implied. The plaintiff is bound to allege in his com
For these reasons the judgment should be affirmed, with twenty-five dollars costs to the respondent.
Guy, J., concurring in the result.
Judgment affirmed, with twenty-five dollars costs to respondent.