Waters v. Davies — 8 N.Y. St. Rep. 162

Majority

p. 162

Frederick F. Waters, App’lt, v. Robert K. Davies, et al., Resp’ts.

(New York Superior Court, General Term,

Filed June 23, 1887.)

Headnote

1. Contract on employment—Construction.

The contract of employment was “in consideration of Mr. F. F. Waters having agreed to give his undivided time and services in our business, as we may direct, we agree to pay him a salary, etc., for a term of two years,” etc. The services of the plaintiff were in travelling over the country and selling defendant’s goods. Shortly before January twelfth, they directed him to go to S't. Paul, with samples, and to take a room and sell in and from it. He refused to go unless the defendants would agree-to pay him besides his salary up to eight dollars for his expenses of traveling. Held, that the service demanded was within the contract. _ That plaintiff could not legally call for any further agreement than the implied agreement to reimburse him for all necessary expenses.

2. Same—Salary—When employee entitled to.

It had been the custom to pay the salary the first and fifteenth of each month. The plaintiff was discharged on the twelfth of January for refusing to follow directions. Held, he was not entitled to any pay for his services from the first of the month.

Appeal by plaintiff from judgment dismissing complaint entered on direction of judge at trial term before a jury.

George Wilcox, for app’lt; B. F. Watson, for resp’t.

The action was for damages from an alleged breach of a contract of employment of plaintiff by defendants, in the latter discharging the plaintiff and refusing to continue the employment.

The contract was in Writing as follows: “In consideration of Mr. F. F. Waters having agreed to give his undivided time and services in our business as we may direct, we agree to pay him a salary, etc., for a term of two years, etc.”'

The salary was paid up to January 1,1886, and not after-wards. The plaintiff had been in the service of the defendants for a long time, and during all the time down to the discharge, he was paid On the first and fifteenth of each month, unless these dates were of Sundays, when a change was made to an earlier or later day. His service was in traveling over the country widely and selling defendant’s goods carried about by him. Shortly before the 12th of

p. 163

January, 1886, the defendants directed the plaintiff to go to St. Paul with samples, and to take a room and sell in and from it. In my opinion the service demanded was within the contract. The plaintiff did not go, and when asked if he refused to go, said he did not refuse, but would go if they would pay him or agree to pay him besides his salary up to eight dollars a day for his expenses of traveling. In substance the plaintiff demanded that before he should follow the directions of his employers they should make an oral agreement as to his expenses in addition to the written agreement which had by implication settled the obligation of defendants as to expenses. They had already impliedly agreed to reimburse him for all necessary or reasonable disbursements he should make in carrying out any direction they might give him under the contract. He could not legally call for any further agreement.

It may be suggested that in response to plaintiff’s claim for expenses up to eight dollars a day, the defendants said they would agree to pay three dollars a day, and therefore they notified the plaintiff that they would not carry out the written contract, their obligation being to pay reasonable expenses, even if they should exceed three dollars a day. In reality, however, this was only an expression of their willingness to make an additional arrangement on the terms they proposed, which was ineffectual if the plaintiff should not assent to it. But if no additional arrangement was made there is no evidence tending to show that defendants declared if plaintiff should obey instructions and make the reasonable disbursements intended by the contract, the defendants would not perform their part. I, therefore, think that the learned judge correctly held that the defendants were justified in discharging the plaintiff.

It is claimed that the plaintiff was entitled to a verdict for the contract value of his services from the first to the twelfth of January, when he was discharged The nature of the contract implied that payment was not to be delayed until the end of the two years and the undertanding of the parties as to when it should be paid, was ascertained by the practice, objected to by neither of paying on the first and fifteenth of each month. As the plaintiff was discharged for cause before the fifteenth, and no new instalment would fall due before that time, the plaintiff was not entitled to salary for the time now in question.

In my opinion the judgment should be affirmed, with costs.

Freedman and Truax, JJ., concur.