Oppenheimer v. Seligman

164 A.D. 744, 150 N.Y.S. 156, 1914 N.Y. App. Div. LEXIS 8455

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1914
• Status: Published

Opinion

Per Curiam:

This order was clearly wrong. For a first cause of action plaintiff alleged a wrongful discharge under the following contract: “ Wilbur M. Oppenheimer agrees to travel for Heilbrun, Falk & Co.,” and the latter agrees to employ Oppenheimer “for one (1) year commencing January 1,1912-, on a commission basis of PA% on all goods shipped,” Oppenheimer “to receive a drawing account of $30 per week, and travelling expenses, all to be charged against commission.” The third cause of • action is for disbursements made during the continuance of the employment. Defendant answered as to the first and third causes of action, and demurred to the second, which demurrer the court below held to be bad. The second cause of action repeats the allegations of the first (1) touching partnership of defendants; (2) the execution of the contract, a copy of which is annexed to the complaint, and (3) that plaintiff entered upon the performance of the contract and performed the same on his part. It then alleges that plaintiff’s occupation was that of an embroidery salesman, and his “ particular territory or route was the States of Indiana and Illinois, all of which facts were well known to defendants; ” that notwithstanding plaintiff’s customers were in the territory aforesaid, through which territory it was agreed that plaintiff was to travel, after he had made a single trip defendants refused to permit him to revisit such territory, but retained him in them store in New York city, and later sent him to canvass territory which he had never covered before and where he had no acquaintances or business, and being thus deprived of a fair opportunity to make sales on which his compensation under the contract depended, plaintiff was greatly damaged in his business, and reputation as well, to his damage, etc.

There is not a word in the contract limiting the territory in which plaintiff was to travel or effect his sales. Under these circumstances the contract terms must prevail in preference to any construction which the pleader may by innuendo or otherwise be pleased to place upon it. (Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328; Gminder v. Zeltner Brewing Co., 126 App. Div. 776; Winch v. Farmers’ Loan & Trust Co., 12 Misc. Rep. 291.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to plaintiff to amend on payment of said costs.

Present — Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to amend on payment of costs.