
    Joseph Ware, Appellant, v. The Guatemalan and Mexican Mahogany and Export Company, Respondent.
    First Department,
    May 24, 1907.
    Contract for services — agreement 'that employee need not devote his whole time to employer—performance submitted to jury—when erroneous charge as to plaintiff’s damages immaterial—newly-discovered evidence.
    Although a contract for services, whereby the plaintiff agreed to act as a foreign managing agent for a corporation, did not require him to give all his time and attention to the business, he was .nevertheless required to perform his duties with the competence and skill proper under the circumstances.
    When, in an action to' recover for the breach of said contract of employment, it appears that the plaintiff only spent one-quarter of his time in the discharge ■ of his duties to the defendant, and that he failed to provide an efficient method of bookkeeping or keep the proper inventories, and was generally slack in the management of the affairs of the company, there is sufficient evidence of • failure to perform to raise a question for the jury as to whether the defendant was justified in terminating the contract. . ■
    When the jury finds substantially for a defendant, error in charging on the question of the plaintiff’s damages is'immaterial.
    Newly-discovered evidence upon questions which were properly withheld from the jury does not warrant a new trial.
    Appeal by the plaintiff, Joseph Ware, from a judgment of the Supreme Court in favor of the- plaintiff, entered in the office of the clerk of - the county of ¡New York on the 23d day of November, 1904, upon the verdict of a jury; also from an order entered in said clerk’s office on the 1st day of November, 1904, denying plaintiff’s motion for a new trial made upon the minutes, and also from an order entered on the 2d day of April, 1906, denying the plaintiff’s motion for a new trial on the ground! of newly-discovered evidence.
    
      Everett P. Wheeler, for the appellant.
    
      Arthur G. Bounds, for the respondent.
   Ingraham, J.:

This action was brought to recover damages for breach of a contract of employment whereby the plaintiff was employed as general manager of the defendant at a salary of $12,000, Mexican money, yearly. The contract was in writing and dated the 4th day of May, 1895, and -recited that the party of the first part (defendant) had purchased the mahogany and export business formerly owned and conducted in Guatemala and Mexico by one Jamet. The plaintiff agreed that lie would, at the direction of the defendant, • go to Mexico and, if necessary, to Guatemala to take possession and control of the said property and business so purchased by the defendant, and that during the"continuance of the contract or concession obtained from Guatemala by Jamet or any extension or renewal thereof or substitute therefor acquired by the defendant, and until all wood obtained thereunder had been sold, but not exceeding ■ ten years from date, the plaintiff would, in the name and stead of the defendant, assume the general management and direction of the said property and business, and any and all property and business- of the defendant in Guatemala aud Mexico, it being understood and agreed, however, that the plaintiff should not be required to remain personally in Mexico or Guatemala or to give liis-exclusive time and attention to such management and direction, but only so far as would prove necessary to institute and maintain the proper organization of the business and property of the defendant in Guatemala and Mexico and its enjoyment thereof, and to lceep a general oversight over its affairs therein.' The defendant agreed that it would during such period aforesaid, pay to the plaintiff certain percentages upon the gross proceeds of property in Guatemala and Mexico, but that if such percentages should amount in-any one year to less than $12,000 in Mexican money, then the defendant would pay to the plaintiff a sum sufficient to make up such deficiency. The defendant was also to execute a,nd deliver to the plaintiff a full power of attorney to transact business of the defendant in Mexico and Guatemala during the period aforesaid, and agreed to repay to the plaintiff all disbursements paid or incurred by him in carrying out this agreement, including all traveling expenses -to and from New York and in Mexico and Guatemala.

On the 18th of June, 1900, the president of the defendant wrote a letter to the plaintiff notifying him of the adoption by the board of directors of the. defendant of a resolution stating that the contract or concession obtained by the defendant from Guatemala, dated July 12, 1895, .having been terminated, and other sufficient reasons appearing therefor, it was resolved, “ that the contract between this company and Mr. Joseph Ware, dated May 4th, 1895, be and hereby is declared terminated, and the President is directed to notify Mr. Ware thereof immediately.” The defendant, in its answer, justifies the termination of its contract' with the plaintiff on the ground that the plaintiff had failed to perform the conditions aild obligations imposed upon him by the said contract because of his failure in the name and stead of the company, to the best of his ability, to take possession and control of the property and business; which, prior to the execution off the said contract, had been purchased by the defendant, and. generally because'.of his failure to perform his duties under the contract. The case, thus resolved itself into a dispute between the plaintiff and defendant as to whether or not the plaintiff had performed his obligations under the contract. It was admitted that there was a balance due the plaintiff of $246.90. This was based upon a balance, of the amount due for the fifth year, which ended on May 4, 1900. The plaintiff was not discharged until June 18, 1900, being one month and fourteen days after the expiration of the fifth year.

The question as to whether the defendant was justified in terminating the contract on account of the failure of the plaintiff to perform his obligation under it, was, considering all the testimony, for the -jury. It is quite true that the plaintiff, was not required to devote liis whole time and attention to the management of this company, but he accepted the position of general manager and agreed to proceed to Mexico or Guatemala to reorganize the business there, and stay there as long as was necessary for that purpose. . Between May 4, 1895, the date of the contract, and its termination in 1900, the plaintiff was only absent from Mew York on his trips to Mexico and Guatemala about seventeen months, thus spending about one-quarter of his time in the discharge of his duties and three-quarters of his time in the United States. He did little, if anything, while in the United States in the service of the company, and in view of the "situation, both in Guatemala and Mexico, it is apparent that it was necessary to have' an active, responsible manager there. His failure to provide an efficient method of bookkeeping of the business of the company, and his failure to provide the company with the proper inventories and accounts to show the condition of the company and the general slackness of his management oh the affairs of the company and neglect of the business for such a period, I think was some evidence of a failure to perforin the contract on his part so as to raise a question for the jury as to • whether the defendant was justified in terminating the contract!' It may be that there is not any one thing which would justify a finding that plaintiff had failed to perform his contract, but it ■ was the general situation created by plaintiff and. the failure to take efficient charge of the business that he had agreed to manage and control, which presented a question for the jury to say whether the defendant. w*as justified in terminating the contract.

When the court submitted to thé jury this question, he instructed them: “Was the company justified in terminating that relationship which existed because he did not measure up to the importance of the position; that he failed to perform the duties in a manner that was required of him ? That you must determine in its proper aspect. How if the plaintiff did perform his duties with competence and with the skill that would be proper in a case of that kind, and if.lie. observed the care that would be expected of him, then of course he is entitled to recover and the discharge was a wrongful one. If, on the other hand, he did not perform his duties with competence, and he was negligent in his trust, indifferent to the interests of his employer, and if the extent of that incompetency or lack' of skill was such that the employer felt that his business interests were so imperilled or impaired as to justify him in discharging him there should be no recovery in this case.” Both parties accepted this statement of the question that was to be submitted to the jury without objection or exception, the only exception taken to the charge being one on the question of damages, which, as the jury found for the defendant, was not important, and feeling as we do that there was a fair questipn presented for the consideration of' the j ury, we do not think we should disturb their verdict.

In relation to the application for a.new trial on the ground of newly-discovered evidence I think it was properly denied. It was not evidence that would be likely to change the verdict upon this ,one crucial question that was submitted to and decided hv the jury. This testimony mainly related to the question of whether a Rg’W ‘ ¿oncession had been obtained and that question the court refused to submit to the jury as justifying the discharge,

In relation to this difference in the amount of tiie recovery, upon examination of the charge it will be seen that no point was made by the plaintiff about his being entitled to recover any compensation from the fourth of May td the time that he.was discharged. During that time he rendered no service to the company ; he submitted to the statement .of the trial court to the jury as to the amount which he was in any event entitled to recover and there was no exception or claim upon the record that the verdict was inadequate in that respect.

We think, .therefore, that both judgment and orders appealed from were right and sh'ould be affirmed. '

■ Patterson, P, J,, McLaughlin, Clarke' and Lamrert, JJ., concurred.

Judgment and order affirmed, with costs. Order affirmed, with ten dollars costs and disbursements.  