Gressing v. Musical Instrument Sales Co.

Ingraham, P. J.: Plaintiff brings this action based upon a breach of a contract of employment contained in two letters written by the defendant to the plaintiff, copies of which are annexed to the complaint. There is no allegation and no proof of any other contract except that contained in these two letters. In the first letter, dated July 19, 1912, the defendant stated its proposition to the plaintiff, and after reciting certain contracts that the defendant had with two firms who had department stores in the city of New York, the letter continued: “We will agree to pay you one-half of one per cent, on sales up to the guarantee in each respective store, taking for example McCreery’s 23rd Street Store, we will pay you one-half of one per cent, on sales up to $50,000, and on sales above this amount, we will pay you one per cent, commission. In McCreery’s 34th Street Store we will [pay you] one-half of one per cent, commission on sales up to $100,000, and one per cent, commission on sales above this amount. In O’Neil-Adams, one-half of one per cent, on Talking Machine Sales up to $150,000, and one per cent, on sales above this amount, paying you also a salary of $3,000 per annum, and guaranteeing you a net income of not less than $4,000 per annum.” The further letter of July 26, 1912, apparently has no relation to the term of plaintiff’s employment. In charging the jury the court said: “ It is the duty of the court to construe written agreements, and in the construction of that instrument I construe it to be a contract for a year, and I charge you, as matter of law, that there was a contract in this case for a year.” And to this charge the defendant excepted. I think the court was wrong in this construction of the contract. It is settled in this State that ‘£ £ the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will; and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. A hiring at so much a day, week, month or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was [40] for a day even, but only at the rate fixed for whatever time the party may serve * * (Vann, J., in Watson v. Gugino, 204 N. Y. 535.) This was a restatement of the rule stated in Martin v. Insurance Co. (148 N. Y. 117), where it was said: “ ‘ A contract to pay one $2,500 a year for services is not a contract for a year, but a contract to pay at the rate of $2,500 a year for services actually rendered, and is determinable at will by either party.’” (See, also, Cuppy v. Stollwerck Brothers, Inc., 158 App. Div. 628.) We can find nothing in this contract which takes this case out of the inflexible rule thus stated. In this contract there was no agreement to hire the plaintiff at all. What the defendant agreed to was to pay plaintiff one-half of one per cent on sales up to the guarantee in each respective store, and they took for example a store upon which defendant was to pay the plaintiff one-half of one per cent on sales up to $50,000 and one per, cent on sales above that amount.- Both parties evidently contemplated that plaintiff would remain in defendant’s employ for some period, as it is said in the letter that this agreement would follow plaintiff in each succeeding year without its being necessary for plaintiff to ask for a new agreement, “ as, of course, it will work automatically.” I can see nothing in this agreement, however, to indicate that plaintiff was to remain in defendant’s employ for any period. This contract was to work automatically, by which plaintiff was to be entitled to receive the commissions stated for the period in which he continued in defendant’s employ, but either party had the right to terminate the employment at any time, when, of course, the commissions would cease. The defendant further agreed to pay plaintiff a salary of $3,000 per annum and guaranteed him a net income of not less than $4,000 per annum. But this, under the cases cited, was simply a criterion by which the amount that plaintiff should receive for the services that he rendered was to be determined, and there is nothing in either of these contracts, as I read it, employing the plaintiff for any period or entailing upon either party an obligation either to continue the services or to pay compensation after the employment was terminated. I think, therefore, that the judgment appealed from must [41] be reversed, and, as the cause of action of plaintiff’s complaint is based entirely upon these letters, that the complaint should be dismissed, with costs to the defendant in this court and the court below. Clarke, Scott and Dowling, JJ., concurred; Hotchkiss, J., dissented.