The plaintiff was employed as an “ assistant superintendent ” by the defendant at a stated weekly salary, with *471certain, additional compensation based upon the amount of business secured, under a written contract which was expressed to be terminable by the defendant at will and without notice.
His duties comprised a general superintendence over the actions of certain agents for the soliciting of insurance, the instruction of these agents and the furnishing of reports to the defendant relative to the matters connected with such agencies, and his compensation, over and above the stated 'weekly salary, was based upon an excess of business secured by the agents under his control.
The defendant’s business, as touching the plaintiff’s employment, was that of industrial life insurance with policies issued on weekly premiums, and it was the defendant’s custom, when the premiums on any policy became four weeks in arrears, to require the soliciting agent to “ lapse ” or cancel it, failing which the agent or the “ assistant superintendent,” the agent’s immediate superior, was charged with the amount of the premium when so in arrears excessive of four weeks.
The right to make this charge against the plaintiff was not reserved by the defendant in the written contract of employment; nor, we are to assume, was the custom to make deductions in this regard from the employee’s salary known to him at the time when he accepted the position of assistant superintendent, and the claim in suit is for the recovery of sums withheld by the defendant from the plaintiff’s weekly salary on account of arrearage of premiums, due under circumstances such as above alluded to, during some forty-six weeks, at the rate of about $1 per week.
Whatever the provisions of the contract, and however ignorant the plaintiff might originally have been as to this custom, it appears heyond contradiction, from admissions by counsel and from the plaintiff’s own writings, that these deductions were made from his salary with his knowledge of the defendant’s reason for so doing and with his expressed assent.
He signed vouchers, weekly, for his salary as received, upon the face of each of which appeared the amount of deduction and the name of the subagent for whose arrearage it was made; he recognized the custom, under which these charges were made against him, in letters to his superiors, proposing slight modifications such as the facts called for, and that there might be no doubt of his knowledge of the matters in question his counsel admitted It upon the trial.
What, then, is his explanation of this apparent acquiescence in *472that course of business, and - abandonment of a part of his salary thereunder?
It is, according to his evidence, that, from his experience of the- defendant’s conduct of its affairs, his discharge would have, followed his dissent, and that he was passive in order that he imght keep'his position.
If so, we may only say that he kept it at an expense of precisely the amount in suit.
This was no case of a contract performed by one with a reservation of. rights arising through the' other party’s breach, such as the respondent’s counsel contends for in support of the judgment; it is, of course, to be conceded that in a proper case the aggrieved party may- continue performance. and recover his damages none the less.
Here,, howéve-r, the plaintiff did not avail himself of his rights arising under the defendant’s, breach of contract, which occurred, if at all, during the first month of his employment, and his opportunity for performance during the succeeding ten or eleven months existed through «his waiver of the breach or an accepted modification of the agreement, under which the 'defendant retained him. ' .
The actual waiver, -instead of being explained away by the circumstances, is shown to have existed for' an acceptable consideration, in that-it-was intended to induce the defendant to forego the exercise-of its privilege under the contract, the right of immediate discharge, and hence the plaintiff has-proven not an excuse for his ratification hut an estoppel of its denial.
It results that the recovery was manifestly without support.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Daly, P. J., and Mo Ad am, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.