p. 40The nature of a contract whereby an employer agrees to pay his employee for his services a stipulated sum per year, for a stipulated period, implies that payment is not to be delayed until the end of the stipulated period, and the understanding of the parties as to when it should be paid may be the practice adopted by the parties without objection by either of them.
Applying these principles to the case at bar, it was held: (1) That plaintiff had no right under his contract to refuse to go to St. Paul, as directed by defendants, unless he was paid up to eight dollars a day for his trav_ eling expenses. (2) That defendants’ offer on such demand being made; to pay three dollars a day, was only an expression of a willingness to make an additional arrangement which was ineffectual if plaintiff did not assent to it; but was no evidence that defendants would not perform their part of the contract by paying reasonable expenses if plaintiff performed his by obeying their instructions. (3) That the parties having adopted the practice of paying and receiving salary on the first and fifteenth days of each month, and the plaintiff having been paid up to January 1, and discharged January 12, he could not recover for the value of his services during the intervening period.
Before Sedgwick, Ch. J., Freedman and Truax, JJ.Appeal by plaintiff from judgment dismissing complaint entered on direction of judge at trial term before a jury.
The facts appear in the opinion.
George Wilcox attorney and of counsel for appellant, on the questions considered in the opinion, argued:—
I. Upon the face of the contract and without further evidence, the plaintiff agreed to give his services in the city of New York and not elsewhere. The defendants had no right to demand his services in St. Paul, and his refusal to comply with such a demand, would not justify his discharge. The contract was made in this city and recites the place of business of the defendants, as at Nos. 427 and 429 Broadway. It clearly refers to the
p. 41business carried on there and contains no suggestion of any other place of business or of services to be rendered elsewhere. In Bishop on Contracts, § 1391 (1887), the rule is laid down as follows: “ In the absence of anything indicating the contrary, the place of the making of a contract is presumptively that of its performance.” Wharton on Contracts, § 872. “When an obligation is assumed by a party at his domicil, then his domicil is the place of performance unless the obligation otherwise provides.” Fraser's Master and Servant, page 77. “ In' the case of servants whose work has reference to a place, not to the master’s person, &c., the master cannot remove the servant to any other farm or manufactory at any distance inconvenient to' the servant.” The place where the master has his work at the time of the engagement will be held the place where (in the absence of express stipulation) it is implied that the servant was to labor and having once entered to his service he cannot be removed to any place which may occasion him trouble and expense.”II. If the obligation of the plaintiff is to be sought outside the terms of the contract and reference made to the further evidence in the case, it is still insisted, that the requirement of the defendants was unauthorized and the plaintiff’s discharge not justified. This requirement appears to have been that the plaintiff should go to St. Paul and open a sample room there and not travel. It needs no evidence to show that the business of a traveling' salesman is entirely distinct and different from that of a book-keeper, an ordinary local clerk, or the keeper of a fixed sample room'. To withdraw a traveling salesman from his regular customers for six months and practically shut him up in a small sample room at a distance from the centres of trade, would impair his usefulness and destroy his capital. It is therefore submitted that upon the contract and the evidence, the only duty the defendants could require from the plaintiff, was either that he should serve them at their place of busi
p. 42ness in this city, or as a traveling salesman in the same manner as he had served them so many years before.HI. The plaintiff did not in fact refuse to obey any order of the defendants and his discharge was unjustifiable in any view of the case. The result of the whole testimony is that plaintiff repeatedly declared his willingness to go- to St. Paul, and elsewhere, provided his proper traveling expenses were allowed up to $8.00 a day. If the defendants did not recognize the agreement to allow him $8.00 a day, he was entitled to claim his actual expenses even if they exceeded that amount, but to avoid all question, he limits himself to that amount, and if only $3.00 a day is allowed he is ready to go as far as $3.00 a day will carry him. There is certainly no refusal shown in the evidence unless the court is prepared to hold that the plaintiff was bound to go wherever sent and pay his own traveling expenses, a construction of the contract which will hardly be contended for. There is no evidence that the defendants ever offered to pay his actual expenses as they were bound to do. It is submitted, therefore, that the plaintiff' was justified in requiring .the payment of his proper traveling expenses and that no refusal to comply with the demands of the defendants has been shown, which was a sufficient ground for his discharge. If, upon the. evidence, there could be any question upon this point it was error not to submit it to the jury.IY. The court erred in dismissing the complaint for the further reason that the evidence showed that the defendants had not paid plaintiff his salary from the 1st to the 12th of January, a term prior to his discharge. Lawrence v. Gullifer, 38 Me. 532 ; Jones v. Jones, 2 Swan, 605 ; Robinson v. Sanders, 24 Miss. 391 ; Swift v. Harrison, 30 Vt. 607 .
B. F. Watson, attorney and of counsel for respondents, on the questions considered in the opinion, argued:
I. The dismissal of the complaint was not only proper
p. 43but unavoidable. The contract sued on is neither ambiguous nor uncertain in its meaning. Its terms are clearly stated. It gave the plaintiff no claim to anything but $3,500 a year, and his qualified refusal to give his services as directed, amounted to a breach of the contract on his part, and he is not entitled to recover thereupon. Brown Water Furnace Co. v, French, 34 How. Pr. 94 .II. In any view of the case, proof of a custom allowing traveling expenses, is incompetent to vary the plain terms of an explicit contract. The construction of the contract was a question for the court, especially as the contract was in no degree either ambiguous or uncertain. Glacius v. Black, 67 N. Y. 563 .The action was for damages from an alleged breach of a contract of employment of the 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 of thirty-five hundred dollars per year, for a term of two years, &c.” The salary was paid up to January 1, 1886, and not afterwards. 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 1st and the 15th of each month, unless those 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 defendants’ goods, carried about by him. Shortly before January 12, 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
p. 44to go, said he did not refuse, but would go if they would pay him, or agree to pay him, beside his salary, up to $8.00 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 the 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 $8.00 a day, the defendants said they would agree to pay $3.00 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 $3.00 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 were 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 1st to the 12th 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 understanding of the parties as to when it should be paid was ascertained by the practice, objected to by neither, of paying on the 1st and 15th of each month. As the
p. 45plaintiff was discharged for cause before the 15th, 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 Tritax, JJ., concurred.