Levy v. Beekman Pub. Co.

19 N.Y.S. 751, 47 N.Y. St. Rep. 225, 65 Hun 619

• Court: New York Supreme Court
• Decided: June 29, 1892
• Status: Published

Opinions

Patterson, J.

We are of opinion that the judgment entered on the verdict of the jury in this action cannot be upheld. The plaintiff sued to recover damages for the breach of a contract of employment. He had agreed to devote his entire time for three months to securing advertisements to be inserted in a publication issued by the defendant, and was to receive a stipulated weekly salary, and in addition thereto a commission of 25 per cent, on all advertisements secured by him. After six weeks’ service under this contract, during which period he obtained several advertisements for the defendant, he was discharged on the asserted ground of dissatisfaction “ with the meager results” of his work. He claimed in this action compensation for tile remaining six weeks, and commissions on the amount of the advertisements he had procured, and which,the defendant had accepted. The answer is, in substance, a general denial. On the trial the defendant claimed that the plaintiff himself had first broken the contract by entering into the service of another publisher, and hence tile dismissal was justified. One instance was proven of his having procured an advertisement for such other publisher. There was a conflict of evidence as to the relations established between the plaintiff and this third party. The former swore that there was but this one, single transaction, which did not interfere with his duty to the defendant, while the party referred to testified to facts which would indicate an employment incompatible with the devotion of the plaintiff’s entire time to the service of the defendant. The learned judge left it to the jury say whether the single act proven, constituted, under the circumstances, a breach, within the contemplation of the parties, but he instructed them that that related to the weekly salary. As to the commissions, he charged that the plaintiff was entitled to recover on what was actually received by the defendant in payment for advertisements procured by the plaintiff, and that was done in view of the fact that but a small fraction of the price to be paid by the advertisers was paid, in consequence of the publication being suspended before the full periods for the insertion of these advertisements had expired. It would appear, therefore, that the learned judge considered that the plaintiff was; entitled to recover some part of the commissions, although the jury might find that he was not entitled to the salary, and that the contract was severable. In this he may not have been mistaken. The contract is somewhat peculiar in expression, and is susceptible of the construction that commissions were to be paid independently of salary, and such, undoubtedly, was the understanding of the defendant, which fully recognized its liability to pay the commissions in the letter discharging the plaintiff; for it is therein stated that, “as fast as the checks are received for the advertisements you secured, your commissions will be forthcoming.” The jury, acting on the instructions of the court, brought in the following verdict: “The jury finds for the defendant, but that the plaintiff is entitled to a commission of 25% on all advertisements accepted by the defendant, to wit, $88.50.” Thereupon counsel for the plaintiff, considering, doubtless, the finding of the jury as a special verdict, moved for judgment, which was granted; the court afterwards stating that, while the verdict should be set aside on technical grounds, (alluding to its being for commissions on the total value of the advertisements accepted, and not only on such sum as had been received, and therefore against the instructions,) yet, on reconsideration of the charge, he was satisfied the jury was right. We think the effect of this peculiar verdict was to produce a mistrial. There is nothing in the practice that authorizes a general verdict in favor of one party to an action, and a qualification thereof in the form of a special finding in favor of the other. What was meant by this verdict probably is that the jury found the defendant was justified in dismissing the plaintiff, and therefore the latter was not entitled to the salary, but was-entitled to his earned commissions. But they have not said so, and, even had they, the verdict would still be fatally defective. In an action to recover a sum of money only, a jnry may render a special verdict in its discretion. Section 1187, Code Civil Proc. Such a verdict is one by which the jury finds the facts only, leaving the court to determine which party is entitled to judgment. Section 1186. It must set forth all the facts authorizing a judgment. If that is not'done it will be set aside. Casey v. Dwyre, 15 Hun, 153. Here, in addition to the want of a statement, there is the singular contradiction of a general verdict for the defendant on the issues submitted, nullified by a finding of a specific sum on those same issues in favor of the defendant. We cannot, of course, reconcile the incongruity of such a verdict, and are compelled to reverse the judgment, and grant a new trial, with costs to abide the event.