The plaintiff sues the defendant corporation for breach of a written contract of service.
On the face of the contract defendant employed the plaintiff as traveling salesman for the year 1892, at an annual salary of $1,800 per annum and expenses.
The plaintiff alleges performance and the defendant avers breach of the contract on his part.
The fact is that the defendant discharged the plaintiff on the 24th day of June, 1892, for the reason that he refused to drum for trade in the cities of New York and Brooklyn.
The question litigated at the trial was the meaning to be given to the words "traveling salesman," the plaintiff contending that as the principal business office of the defendant was in the city of New York, the term "traveling salesman" implied the sale of goods by him outside of the cities of New York and Brooklyn.
The defendant insisted that the contract obligated plaintiff to sell goods wherever they might direct him to go in the United States.
The course of the trial was such that both parties treated the written instrument as indefinite and needing explanation by extrinsic facts.
Evidence was given on both sides as to the alleged custom in the trade of construing the words "traveling salesman."
The learned trial judge, in his charge to the jury, said substantially that as each party had resorted to proof of custom, *Page 714 he should leave the question to the jury as to the meaning of the controverted words, in the light of any custom that might have been established in their judgment.
There was also another question litigated on both sides and without objection, as to conversations between the plaintiff and the representatives of the defendant, leading up to the written contract.
On the part of the plaintiff, he testifies that he expressly stated that he would not undertake to sell goods in the city of New York and the vicinity, as he was totally unacquainted with that territory and his traveling had been confined to the south and west.
The defendant introduced evidence to the effect that plaintiff was informed that if he signed this contract he would be expected to sell goods in the city of New York and vicinity.
That question was also submitted to the jury.
The learned General Term, in a majority opinion, held that the questions of fact were properly submitted to the jury, and as they had found the contract to be, so it was.
The dissenting opinion seems to rest entirely upon the ground that plaintiff's sales were so small in comparison to the salary that he received, that he must be regarded incompetent as a salesman.
The learned trial judge informed the jury that if plaintiff honestly endeavored to make sales and did not succeed, it was one of the risks the employers took in selling goods over the country.
The judgment should be affirmed.
All concur.
Judgment affirmed, with costs. *Page 715