
    Henry Byrnes, Respondent, v. Austin P. Baldwin et al., Appellants.
    (City Court of New York, General Term,
    June, 1896.)
    Master and servant— Compensation dependent on sales.
    Where a contract of employment to superintend the manufacture of a particular article provides for compensation at a' certain percentage Of actual sales thereof, the compensation is not dependent upon the continuance of the employment, but the employee is entitled to the percetitage of sales of the article manufactured by him, though made after the termination of the employment.
    Appeal from judgment in favor of the plaintiff, entered" upon a trial by the court without a jury.
    Charles D. Evans, for respondent.
    Seward, Guthrie, Morawetz & Steele, for appellants. .
   Conlan,' J.

This is an appeal from a.judgment entered, at the trial had before the court without a jury.

All the material facts are admitted and the' only real question presented is one of construction.

It appears-that some time in February, T883, the defendant and one John Bolger entered into an agreement as follows: '

“ It is agreed between the firm of Baldwin Brothers &'Co., and John Bolger, all of . this city, that the said John Bolger shall continue in the employment of' the said Baldwin Brothers & Co., independently of any agreement which may exist between the said' Baldwin Brothers & Co. and Charles A. Seddon for the manufacture and sale of prune liquor, and after the 1st of March next; that in view of his superintending the manufacturing the said prune liquor directly under the .control of the said firm, and turning out an article equal to that of any article of the same kind manufactured and sold in the United States, we, the said Baldwin Bros. & Go., will pay him at the end of each month, commencing on March next, the zsum of five cents per gallon on the amount of actual sales effected during each month.
“ This memorandum having been read and agreed to on this 9th day of February, 1883, we bear witness to the same with our signatures.
“Austin Baldwin,
For Baldwin Bros. & Go.
“ John Bolger,
“ GIeorge B. Seymour.”

(Exhibit A.— to answer—)

It is admitted that Bolger continued in such employment until October 15, 1892, when he voluntarily terminated his engagement with the defendants; also, that there were 5,000 gallons of liquor manufactured and unsold on that day and that the same were- subsequently sold by defendants.

This' action is brought by plaintiff as assignee to recover five cents per gallon on these 5,000 gallons sold after Bolger’s employment had ceased. We think the interpretation put upon the agreement by the court below was correct.

The five cents per gallon was Bolger’s compensation for superintending and producing a liquor of a certain quality, but this payment was deferred until the liquor was sold, when the five cents per gallon became due.

. We do not think it depended upon the continuance of Bolger in the employ of the defendants. No time was fixed by the agreement, and either party could terminate it at any time.

The knowledge or skill of Bolger had entered into the quality of the liquor so manufactured, and his compensation for the use of such knowledge and skill was five cents per gallon, irrespective of the period of his employment; otherwise, defendants could kéep a large stock of the liquor on hand, and thus compel Bolger to remain in their employ or forfeit the commission which had been earned by his skill; or again, will it be contended that if defendants had allowed a -large quantity to accumulate by reason of bad times or otherwise, and Bolger died while in the employ of defendants and these liquors were unsold, that, his legal representa tives would not have a claim for the commissions when sold ?

We don’t think the agreement will bear such construction, and as no errors of law were committed on the trial the judgment should be affirmed.

Judgment affirmed, with costs.

O’Dwyer, J., concurs.

Judgment affirmed, with costs.  