Opinion
June, 1914.
R.E. A.J. Prime (Gustavus A. Rogers and Saul E. Rogers, of counsel), for appellant.
Henry Salant, for respondent.
Plaintiff sued defendant for unlawful discharge under an alleged agreement of employment running from year to year. Plaintiff acted as advertising solicitor for the defendant in certain territory pursuant to an agreement contained in defendant's letter of December 4, 1901, at a salary of fifteen dollars per week and twenty-five per cent. commission, the letter specifying that the agreement was to run for a year subject to abrogation on sixty days' notice. Matters ran on from year to year in this way until December 24, 1906, when defendant wrote to plaintiff: "Your salary will be increased to $60 per week." This was understood and treated by both parties as abrogating the commission basis plus the salary and establishing a fixed compensation by way of salary alone.
Defendant now claims that this new arrangement constituted a termination of the original contract and initiated a new hiring from week to week. In this view I cannot concur.
Defendant cites, among other cases, in support of its view, Schott v. La Compagnie Generale, 52 Misc. 236; Molostowsky v. Grauer, 113 N.Y.S. 679; Romaine v. Beacon Lith. Co., 13 Misc. 122; Riley v. Mayor, 96 N.Y. 331, 338.
I think the defendant misapplies the rule stated in the last case, which is "A contract raised by implication may be changed, annulled or modified by a different state of circumstances authorizing the presumption of a new or different contract." In the case at bar, it seems to me, that the only change which the parties contemplated in their relation was a change of salary, and there is nothing to give rise to the presumption that the old contract, which by implication was still continued by them from year to year, was otherwise modified. See, also, Wood v. Miller, 78 Misc. 378; although in that case the paper which constituted the new agreement definitely provided that the relations of the parties should otherwise be unaffected.
On June 3, 1913, defendant wrote plaintiff that owing to the poor business conditions in his territory the relations between them would be terminated on and after August first. It is conceded by plaintiff that this would be an adequate notice of the abrogation of the agreement then claimed by him to be subsisting between them; but plaintiff testifies that after the receipt of that letter he called on defendant's president with the result that he was given a letter on July 21, 1913, reading as follows: "Will make place for you on the basis of the present arrangement beginning with the first week in October figuring at that time on certain territory which will be mutually agreeable. In other words, we will simply figure the time you are away from the office as leave of absence without pay." When plaintiff reported for service on October sixth he was told that he would not be re-engaged, and his claim is that he was at that time unlawfully discharged.
As I view it, therefore, the controversy resolves itself into an interpretation of the letter just quoted of July twenty-first.
Defendant, by two witnesses, offered proof that this letter was given merely at plaintiff's solicitation and with a view of having him show it to the other employees for his own purposes. This plaintiff denied, saying that there was no conversation at or about that time modifying the terms of the letter. But if that be so, then the letter and its acceptance by the plaintiff constituted a new contract based upon the old agreement as modified plus the terms of the letter. In this respect it differs from the letter construed in Bennett v. Mahler, 90 A.D. 22, because in that case the communication from the defendant to the plaintiff contained no new terms; but speaking of the prior discharge of the plaintiff, said: "That is off," with additional statement that plaintiff might take a vacation for a week and then return for the ensuing year.
Regarding now the letter of July twenty-first in the case at bar as one of the terms of a new agreement sought to be entered into between plaintiff and defendant, it must fail because it is evident that the minds of the parties had not met on all the essential terms and that it did not, therefore, constitute a complete agreement between them. The record disclosed that for months plaintiff had been dissatisfied with the territory allotted to him in which to solicit orders. The new arrangement, in terms, provided that he should have "certain territory which will be mutually agreeable." On this point it seems to me that Mayer v. McCreery, 119 N.Y. 434, is decisive to the effect that the parties had failed to reach an agreement. The objection was distinctly raised on the defendant's respective motions to dismiss the complaint and due exception taken to their refusal.
SEABURY and PAGE, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.