The pleadings are written. Plaintiff alleges that at the request of defendant he rendered services as canvasser and salesman between March 8, and June 8, 1915, at the agreed weekly salary of $25, of which $125 had been paid to him. The answer, in addition to a denial of the complaint (except as to the payment of $125), sets out, first, that the contract was terminable at the end of four weeks at the option of the defendant, and that the defendant so terminated it, and, next, that while plaintiff was “pretending to render services *757to defendant,” he failed to obey certain reasonable orders and requests of defendant, and for that reason was discharged.
[1] On the cross-examination of the plaintiff, he was asked whether he had not endeavored to sell for others during the time of his employment with defendant. The court sustained the objection of his counsel to this question, which was placed solely oil the ground that the contract did not specify that the plaintiff was to- give his exclusive time to defendant’s business. (There was no suggestion that the matter was not within the pleadings.) Yet the defendant’s president, on his direct examination, had testified to the effect that plaintiff was to give his exclusive time, the court adding, “I will take it that he was to give his exclusive time.”
[2] The respondent endeavors to sustain the judgment on the ground that it necessarily implies a finding of fact by the court below that the plaintiff was not discharged. This, however, is not correct. The learned judge may have found that, although the plaintiff was discharged, such discharge was without cause, and that therefore plaintiff was entitled to recover wages for the period during which he claims that he performed or tendered services.
[3] I do not see that anything decided in McCargo v. Jergens, 206 N. Y. 363, 99 N. E. 838, Milage v. Woodward, 186 N. Y. 252, 78 N. E. 873, and Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285, bears upon the present controversy. The question whether plaintiff is suing strictly for wages or for damages for breach, of contract, or both, becomes important when recovery is sought for a period beyond the discharge and beyond the commencement of the action. If suit be not brought until the term of service provided by the contract has elapsed, there is no doubt that if the servant has been wrongfully discharged he may recover. Whether in such case the form of action be called a suit for breach of contract or a suit for wages due under the contract is of no importance except so far as it may involve the right of the defendant to claim and prove that the amount of damage might have been reduced by the plaintiff’s accepting other employment. Not only is that point not urged by the defendant in the case at bar, but this appeal is taken by the defendant, as I understand it, on the theory that no such claim is desired to be urged by it.
The only question presented upon this record that I can see is whether the plaintiff was discharged for cause, and on that point, as I have shown above, the defendant was precluded from introducing appropriate evidence.
The judgment must be reversed, and new trial granted, with $30 costs to appellant to abide the event.
FINCH, J., concurs.