ness every day, as usual, during the ensuing week, and endeavored to obtain a modification of the company’s decision, but without success, and, on the 11th of July, 1896, received a further letter, stating that,, since he did not accept its proposition of the 3d instant, his connection with the company ceased on that date, and that since that date he had not been in the employ of the company, nor had any connection with them. The discharge of the plaintiff from his employment undoubtedly occurred at the time of the last letter. The defendant, having in effect given plaintiff one week to consider its proposition, could not make its decision to discharge him for refusal to accept relate back to the time of that proposition. It is equally clear that until he was discharged his salary and commission remained at the original rate, since it was conceded by defendant’s-letter that he had not accepted the proposition for a reduction. After-notifying him of his discharge for not accepting, defendant cannot claim that he remained over under an implied acceptance. He was, therefore, entitled to salary at the old rate, and commissions earned.. The commissions claimed ($15) accrued after his discharge, in connection with orders procured by him prior to his discharge. They were for extra work, on those orders, and his testimony was that they were payable under the custom of the Marvin Safe Company as specified in his agreement. The defendant opposed the claim for commissions on the ground that plaintiff had another action pending for commissions. His complaint in an action in the supreme court, commenced after his discharge, to recover damages, for preventing the plaintiff from earning commissions, was put in evidence. That complaint was based upon a clause of his agreement with the company which gave him the exclusive privilege of closing up sales to parties with whom he opened negotiations, and it was alleged that sales of a large number of safes and vaults were in course of being negotiated by him, and would have been successfully terminated, if it had not been for defendant’s breach of the agreement in refusing to complete such sales through him, and defendant’s closing them itself" after discharging him. The claim in that action is for damages for preventing the plaintiff from earning commissions, while the claim in this action was for commissions actually earned upon orders obtained before his discharge. The pendency of the supreme court action was, therefore, not a bar to the present action.
The plaintiff established his agreement with the company by proof" that, according to a conversation with Mr. Marvin, defendant’s managing director, plaintiff drew up and signed a paper containing certain terms of employment, of which he sent a copy to Mr. Marvin, who told him he had received it, and that it was all right, and that Mr. Herring would set him to work; and that subsequently Mr. Herring set him to work, and afterwards fixed the amount of salary and commissions he was to receive. All this testimony was competent to establish a parol contract of employment. Objection was made to-plaintiff’s conversations with Mr. Marvin because the latter had since - died, but nothing in section 829 of the Code applies to personal trans- • actions with deceased agents or officers of corporations.
The judgment should be affirmed. All concur.