Danenbaum v. Person — 25 N.Y. St. Rep. 849

Majority

p. 849

Charles Danenbaum, Pl’ff and App’lt, v. A. Person et al., Def’ts and Resp’ts.

(City Court of New York, General Term,

Filed December 31, 1888.)

Headnote

1. Contract—Of hiring—Pleading—Evidence—Competency of.

Where the complaint alleges a contract of hiring of plaintiff as a salesman from March 20, 1886, to December 31, 1886, and that he was discharged without cause, to which defendants put in a general denial; at the trial, the defendants were properly permitted to show, under this, the general issue, that the contract was not absolute and continuing in the form alleged, but on the contrary, that it was conditional, and that by-force of the condition it had terminated.

p. 850

.2. Same—Evidence—When exception to question and answer untenable.

The defendant being called as a "witness, was asked by his counsel, was anything said by the plaintiff, in your interviews, “ which led you to suppose that the plaintiff and Mr. Wehrle were working together?” The answer was: “Decidedly.” If the matter had stopped here, the exception taken by plaintiff to the question might have been sustained. But plaintiff’s counsel cross-examined him on the conversation, and the witness answered: “ He (plaintifi) stated that Mr. Wehrle and himself had been working together for a number of years, and were going to run this department together, and were going to share commissions.” The exception to the question and answer is, for this reason, untenable.

Appeal from a judgment entered upon a verdict in favor of the defendants and from an order denying motion for a new trial.

Gardozo & Newcombe (Leonard Bronner, of counsel), for -app’lt; Herman Kobbe (George S.. Hastings, of counsel), for respt’s.

The complaint alleges that plaintiff was ¿employed by the defendants as salesman from the 20th of March, 1886, to the 31st of December, 1886; and his compensation was to ■ be a commission of two per cent on all sales made by him up to July 1, 1886, and at the rate of $2,000 per annum thereafter; that on July 1, 1886, he was discharged without cause. The answer is, practically, a general denial.

Upon the trial, it was conceded that plaintiff had been employed up to July 1st, and had been paid his commissions in full to that date.

The real defense to the action, was however, that the agreement upon which the plaintiff was employed was ■conditional. He was to act as salesman so long as his friend, a Mr. Wehrle, obtained consignments from Europe for. the defendants’ embroidery department, and, should lie at any time fail to procure such consignments, there would be no further use for plaintiff’s services. That Wehrle did fail so to do and the plaintiff was discharged in ■consequence. Objection was made to this defense for the reason that it had not been pleaded. The jury found a verdict in favor of the defendants.

The question therefore arises: was the plea of the general issue broad enough to permit proof that the contract was not absolute and continuing, in the form alleged, but on the contrary, that it was conditional, and that by force of the condition, it had terminated? We think it was. Moak’s Van Santvoord’s, Pl., 506; Knapp v. Roche, 94 N. Y., 333 ; Griffin v. Long Island R. R., 101 N. Y., 354 .

Under the former plea of nil debet, the affirmative was on the plaintiff, who, after proving the debt or liability, rested, and the defendant was allowed, under the general issue, to prove any circumstance, by which the debt or liability was disproved. Stephen on pleading by Tyler, 175. The plaintiff, in the present instance, alleged an absolute unconditional agreement, continuing for a certain period.

p. 851

Under the general issue, the defendant was entitled to prove, that the agreement made, was not absolute, but conditional, and that by force of the condition, it had terminated, for this was in contradiction of the case alleged by the plaintiff.

So, where a plaintiff claims to have sold goods to the defendant, the latter can, under a general denial, prove that the goods were sold to another, for this defeats the plaintiff’s action. Griffin v. Long Island R. R., (supra); Kennedy v. Shaw, 38 Indiana, 474.

The trial judge therefore, properly admitted the defendant’s proof in that behalf, and the exception to its reception, is unavailable.

Much stress is laid upon the exception taken to the allowance of the question: “ Was anything said by Mr. Danenbaum (the plaintiff) in either of these interviews, which led you to suppose that he and Mr. Wehrle were working together ? ” The witness (the defendant Moore) answered: “decidedly.” If the matter had terminated there, the exception might have been well taken under the authorities. But the witness, supplemented his answer by detailing the conversation he had with the plaintiff, upon which his supposition was based, and plaintiff’s counsel cross-examined him on the subject of this conversation. The witness answered: “He (plaintiff) stated that Mr. Wehrle and himself had been working together for a number of years, and were going to run this department together, and were going to share commissions.” The exception to the question and answer is, for this reason, untenable.

The other exceptions in the case are without merit, and do not need discussion.

The verdict is not, in our opinion, so clearly against the-weight of evidence as to require it to be set aside. There was abundant testimony to support the verdict, and the jury had the right to believe the defendant’s witness in preference to the evidence introduced on plaintiff’s behalf.

It follows that the judgment and order appealed from must be affirmed, with costs.

McAdam, Oh. J., concurs.