
    George W. Everitt, Respondent, v. The New York Engraving & Printing Co., Appellant.
    (New York Common pleas
    Additional General Term,
    December, 1895.)
    To induce plaintiff, a former -employee of Harper Brothers, to procure orders for work from them, defendant, agreed orally to pay ten per cent on all - Harpers’, work. Plaintiff procured orders, superintended the. .work and adapted it'to the Harpers’ needs, and received commissions not . only on work so procured by him, but also on the kind of work .that defendant' had previously done for that house. In an action for breach .of the contract, held, that the parties by their acts had practically construed the. contract, as including all the work received from Harper Brothers, .and not alone that which was procured by plaintiff’s influence. ■ - . ' \
    Such contract was not void under the Statute of Frauds because not limited as to time, as it could be terminated at any time by. the failure of ■the Harpers to award orders to defendant.: ■
    An inquiry as to whether any orders were given hy reason of .plaintiff’s influence is too broad, because not limited tó his direct, personal influence. ■
    Appeal by the; defendant from a judgment of the District Court of the city of New,York for the.second judicial district, .rendered by the justice thereof without a jury in favor of the plaintiff.
    The nature of the action and:the material facts are stated iii the opinion. '
    
      Wilson & ‘Bennett, for appellant. ■
    
      Charles A. Beshon, for respondent.
   ■ Gíegebioh^ J.'

This action was brought to recover the sum bf $151.21, claimed by the plaintiff as commissions for’secure ing orders for work for the defendants. The plaintiff’s contention is that he was to receive ten per cent monthly on all the work that came to tiie' defendant out of Harper Brothers’ establishment. Defendant claims that, he was to receive the commission only so long as he actively influenced the awarding of the work to it. .

The undisputed facts are that plaintiff had been employed by Harper Brothers in their engraving department for nine years and knew their requirements, which differed from those of some other establishments. Upon leaving their employment he was engaged by the defendant, which had long been attempting to get work from the Harpers, but, up to that time, had succeeded in getting only $100 or $200 worth per month of coarse line engraving work, its reputation for halftone work, as alleged, being bad. The' plaintiff agreed with it to undertake to secure more orders from the Harpers, and for a considerable period spent most of his time either in the ' one establishment or in the other. He induced those of Harpers’ employees who had the placing of orders to give the defendant work on trial, and then followed the progress of that work through defendant’s establishment, making suggestions, particularly with a view to adapting the plates to Harpers’ needs ; and then again, in the latter’s establishment, ££ ivatched how the plates went through, htiw the impressions looked, etc.” The quality of the work steadily and rapidly improved after the plaintiff’s employment, so that from being unsatisfactory it became excellent. The quantity of work secured also gradually increased until,, in the month of March, 1895, the month sued for, it amounted to about $1,600 worth, the plaintiff’s commissions increasing meamvhile from a few dollars . per month for the first months to nearly $160, the amóunt nów sued for. The defendant informed plaintiff in March, 1895, that the Harpers would not give it any more orders if it paid any commissions. It is significant that the price paid was then decreased from thirty to twenty-seven cents per square inch, the exact amount of plaintiff’s former commissions.

The facts have been recited at such length because they serve to throw light upon the construction of the language conceded to have been used in the agreement of the parties. The defendant’s secretary, Mr. Cooper, testified: I told him I would give him 10 per cent on all Harpers’ Avork.” His understanding of this seemed to be that this commission was in consideration of the plaintiff’s peculiar influence, something in the nature of favor, Avith Harpers’ people. The plaintiff’s understanding seemed, on the other hand, to be that he was. . to- do something, of a more substantial character, namely: To adapt the work done to Harpers’ néeds. To-be sure he had influence in the sense of having, as an old employee* access, to those of Harpers’ people, who controlled the placing of orders, and their confidence in a measure, and tó the extent, of being able to secure a trial, but ultimate .and permanent success depended upon his being able tó bring it about that the' defendant could turn out plates acceptable to the Harpers.

The plaintiff also swore that Mr. Cooper told him that, when once the work was well started, “ he could go to California if he pleased and- he. would receive his check regularly,” and I do not find that this testimony was contradicted;

The practical construction -that the parties placed, upon this agreement, by including tile value .of -the kind of work the deferidant'had been doing for the Harpers -before the plaintiff entered upon this contract in the sum upon which he was paid commissions, has some bearing upon the question whether plaintiff was .to be paid tipon any orders other thantnose directly secured by his influence with Harpers’, people.- . The defendant’s claim -that the contract- is void under -the Statute of Frauds because not to be performed within a year is-not good. „ The Contract was for an indefinite1 period, which would be terminated at any time by the failure of the Harpers to award further orders to the defendant. . If the agree-; ruent may consistently with its terms be entirely performed within the year, although it may not be- probable or expected that it will be performed within that time, it is not within the condemnation of. the statute.” Kent v. Kent,. 62 N. Y. 560, 564. See, also, Warren C. & M. Co. v. Holbrook, 118 id. 586, 593.

*■ Heither do I think that there was error in excluding the questions asked Mr. $mithwick, the man who had final authority in placing contracts for the Harpers, whether any- order's ■ ¡were sent through him by reason of. any -influence of the plaintiff. The objection was that a conclusion was called* for, The question was then asked whether plaintiff had anything-to do with witness’ sending orders to the defendant. I think the objection was good because the question was not limited to the point of any direct personal influence by the plaintiff upon the witness. Only to that extent would Ms answer have been testimony to a fact.

The judgment should, therefore, be affirmed, with costs.

Daly, Oh. J., concurs.

Judgment affirmed, with costs.  