Browne v. Empire Typesetting Machine Co.

The complaint sets out an agreement between the parties for the employment of the plaintiff by the defendant as a salesman to make sales of its machines for a period of one year from December 31, 1896, unless the contract should be sooner terminated as therein provided. By this agreement the defendant undertook to pay the plaintiff, as his compensation, a commission of 10 per cent, on all machines sold to customers obtained by him or his agents. The defendant also agreed to advance $25 a week to the plaintiff, such advance to be considered a part of his commissions, and not as an independent salary. It was further stipulated that the accounts of the parties should be settled once in six months, when the sum of the weekly payments should be deducted from the sum of the commissions earned by the plaintiff, and the balance, if any, should be paid to him. If the sum of the weekly advances should be found to exceed the sum of his commissions, then the defendant was to have the option either to require the difference to be repaid to it by the plaintiff, or to carry the deficit over to the next half year, or to consider the contract at an end. The complaint alleges that the plaintiff has performed all the conditions of the agreement on his part, except in those respects in which performance was waived or prevented by the defendant; that in the year 1897 eight typesetting machines of the defendant were sold through the instrumentality of the plaintiff, to customers obtained by him; that in September, 1897, the defendant refused any longer to make advances to the plain

“This defendant alleges that on or about said day the relations of the parties under the said contract terminated; that the plaintiff had made no sales of the defendant’s machines, and was entitled to no commissions; and that, by reason of the matters and things above set forth, he was indebted to the defendant on the said day in the sum of seven hundred and seventy-five dollars, no part of which has been paid, although payment thereof has been duly demanded.”

I agree with the court at special term in the view that this counterclaim does not state facts sufficient to constitute a cause of action. The appeal book shows that there was a counterclaim in the original answer, to which the plaintiff successfully interposed a demurrer on the same ground. In that counterclaim, however, the defendant did not repeat the denials set forth in the previous part of its answer, as it does in the present counterclaim. Mr. Justice Dickey held that the counterclaim could not be helped out by independent denials in the answer to which no reference was made in the counterclaim itself. For the purposes of that demurrer, therefore, there was no denial of the wrongful discharge of the plaintiff alleged in the complaint; hence he deemed the counterclaim in its original form insufficient. The question now before us is whether it has been made good in its amended form, now that it includes a denial of the alleged wrongful discharge.

It is essential to the sufficiency of a counterclaim that it. should set out facts sufficient to constitute a cause of action in favor of the defendant and against the plaintiff or a person whom he represents. Code Civ. Proc. § 501. To ascertain whether matter set up as a counterclaim complies with this requirement, we must, therefore, consider that portion of the answer standing by itself, and inquire whether or not it would be good, as a complaint, in a separate action by the defendant against the plaintiff or a person represented by the plaintiff. Viewed in this manner, I am at a loss to perceive how the mere denial in this counterclaim of the plaintiff’s allegation that the

A denial by a master that he has wrongfully discharged his servant, or an allegation by a master that he has not wrongfully discharged his servant, is not equivalent, in legal effect, to a good allegation of justifiable dismissal. Such a plea, whether negative or affirmative in form, must allege the facts which are relied upon as justifying the act of the master in discharging the servant. “The law will not assume that a servant has been derelict in duty from the fact that his employer discharged him, but, upon proper allegations that he was discharged while engaged in the performance of the contract and before his term of service had expired, the burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal.” Linton v. Fireworks Co., 124 N. Y. 533 , 27 N. E. 406 . In the present case it is to be observed that the fact of the plaintiff’s dismissal from the employment of the defendant, as alleged in the complaint, is not denied; it is only the wrongful dismissal. If, then, we take as true all the averments of the counterclaim, do they suffice to show that the defendant is entitled to recover from the plaintiff the $775 paid to him on account of his commissions? I think not. The statement that the relations of the parties under the contract terminated on September 16, 1897, does not indicate in what manner they came to an end. If it .means that the contract was rescinded, then the defendant had no claim to the repayment of its advances, unless such repayment was provided for expressly or by implication in the agreement of rescission. McCreery v. Day, 119 N. Y. 1 , 23 N. E. 198 , 6 L. R. A. 503 . The learned counsel for the defendant interprets the averment that the relations of the parties under the contract terminated to mean that the defendant relinquished its claim to the plaintiff’s services for the balance of the year, and that the plaintiff gave up his claim to compensation for the same period; but the trouble with his pleading is that it does not say

The interlocutory judgment should be affirmed, with costs, and with leave to amend upon the usual terms. All concur.