115 N.Y.S. 958 | N.Y. App. Div. | 1909
The parties to this action made an agreement, dated the 11th of January, 1907, whereby the defendants employed the plaintiff for a period of two years from February first, as traveling salesman, to cover territory as per list attached thereto. The defendants were to advance the plaintiff $350 per month during the above period and all necessary traveling expenses, “ all of which is to be charged
The plaintiff testified .that lie went out on the road for the fall season of 1907 on the 18th of March, 1907; stayed on the road twelve or thirteen weeks, and that brought him back about the latter part of May, 1907; that when he went out on that trip he was to sell goods for the fall of 1907 ; that he went out again on the 15th of September, 1907, and returned about the 20th of November, 1907, to sell goods for the spring season of 1908; that he went to Bocliester on the 16tli.or 18th of December, 1907, to see a firm there; that on December 7,1907, he was called into the defendants’ office and saw one of the defendants, when dissatisfaction was expressed; it was said that the defendants had had a hard season, and the plaintiff said he would look around and see if he could get something.else to do; that he would prefer working for the defendants for less money if the defendants could not see their way clear" to keep him, and the defendant said he would see his brother and see if they could keep the plaintiff; that the other defendant then came in .and said: “ Take á job for six months, and we will take you hack after things brighten up a little,” and said, “if you look for another position, our reference that we will give yon will be the very best in the world, and we are only too sorry to lose yon; ” and with that the plaintiff walked out of the office. On the thirty-first of December the plaintiff asked for his allowance for December, when the defendants offered him a check and asked him to sign a release. The plaintiff refused to sign a release and the defendants refused to give him the check. The plaintiff further testified that his total orders for the fall of 1907 were $36,967.38, of which were canceled orders amounting to $5,749.75, leaving the total sales $31,217.63 ; that the total amount of sales made by the" plaintiff in the two seasons which were retained and paid for by customers amounted to about $50,000 up to December 31, 1907; that lie had received no orders for the firm since December 31, 1907. The plaintiff further testified that he went out on the road
The plaintiff was a salesman employed to sell goods at particular
The question is then- presented as to the defendants’ counterclaim. The contract jnovided that the defendants were to advance plaintiff $350 per month during the above period, and all necessary traveling expenses, all of which was to be charged to his commission account. There is no provision that if his commission account should not exceed the amount of these advances, the plaintiff was to repay them. They were to be advanced commissions and to be deducted from the commissions actuEilly earned. After the contract had terminated, as it was on December 31, 1907, the plaintiff was not entitled to further advance payment; but the defendants were not entitled to charge against him or against his advance payments due up to the end of the year, when the contract was actually terminated, the advance payments that had been made under the contract. If the plaintiff’s commissions did not exceed the amount 'of the advance payments while the contract was in force, the. defend
My conclusion, therefore, is that the judgment appealed from should be reversed and a new trial ordered befo're another referee, with costs to the appellants to abide the event, unless the plaintiff should stipulate to reduce the recovery to the sum of $350, the payment due for December, 1907, with interest from December 31, 1907, in which case the judgment as so reduced will be affirmed, without costs of this appeal.
■ Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Judgment reversed and new trial ordered before another referee, with costs to appellants to abide event, unless plaintiff stipulates to reduce the judgment as stated in opinion, in which event judgment as so modified affirmed, without costs. Settle order on notice.