Scott v. Engineering News Publishing Co.

47 A.D. 558, 62 N.Y.S. 609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1900
• Status: Published

Opinion

Barrett, J.:

The plaintiff appeals because the referee disallowed his claim to commissions upon new contracts made by the defendant after his discharge. It is not disputed that the employment was at will, and that the plaintiff’s discharge was lawful. The finding upon' which the referee’s conclusion is questioned reads as follows: “ That some time in the year 1884 or 1885 the plaintiff and defendant mutually agreed that the plaintiff should procure orders or contracts of advertisements, west of the city of New York, for said periodical, and pay all his travelling and other expenses in procuring the same; that the defendant agreed to pay the plaintiff twenty-five per centum upon the amount of all orders or contracts of advertisements, and also u/pon all business that followed the origvnal contracts, and that the parties introduced by the plaintiff were his customers.” Upon the contract as thus found the plaintiff contends that he is entitled to recover his commissions upon advertisements received by the defend%nt, after his discharge, from customers whom he originally secured. The agreement as to commissions upon all business that followed the original contracts was founded upon the defendant’s right to the plaintiff’s continuous service. He was to have his commission upon all such business, not merely because he had secured these original contracts, but because he was there to aid, if necessary, in securing renewals or additional contracts, and in keeping his customers in touch with the defendant. Whether the renewals or additional contracts came in with or without his personal intervention was unimportant, so long as he was there to spur the customers, should they lag. These customers were his, and his interest to keep them for the joint benefit of himself and his employer was the implied consideration for the defendant’s agreement to pay him a commission upon all business that followed the original contracts. He was consequently entitled to commissions upon renewals or additional contracts which came in during his period of employment. We might .even go further and concede that he was entitled to contracts which he had previously secured. There is, however, absolutelyL nothing in the language of the contract to justify the extreme view of it which the plaintiff now takes. The customers were his while the employment lasted, but they were not his when they chose to contract directly with the defendant after his connection with the latter had ceased. The new contracts which these customers made with the defendant, after the plaintiff’s discharge, were independent of those made during the period of his employment. In no just sense did they cover business which followed the original contracts. They covered business which came to the defendant upon a new status, and under the influence of fresh considerations. If the plaintiff is right, then these customers were perpetually his, and they could never, in any contemplated business relation to the defendant, get away from him. He would have more than a life enjoyment with respect to business emanating from them to the defendant, for the right to commissions, as now claimed, would, upon his death, undoubtedly go to his legal representatives. This was-never contemplated. The construction which the plaintiff places upon this contract is strained and far-fetched, while that given to it by the referee is entirely reasonable and must be sustained.

The judgment was right and should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.