
    Henry Hale, Resp’t, v. The Brooklyn Life Insurance Company, Appl't.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 22, 1890.)
    
    Contract—Construction of—Renewal commissions.
    Plaintiff having been employed under an oral contract with defendant to solicit life insurance, induced a number of persons to become insured. On February 13, 1880, he made a written contract with defendant to continue in the service of the company, which contained this clause: “2. The company agree likewise to give you regular renewal commissions on the policies obtained by you when the premiums shall have been paid to the company.” Feld, that the plaintiff was entitled to premiums on policies obtained by him while working under the contract.
    (Potter and Haight, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff, entered on report of referee. •
    
      Hamilton Wallis, for resp’t; Augustus Ford, for app’lt.
    
      
       Affirming 11 N. Y. State Rep., 544.
    
   Follett, Oh. J.

Appeal from a judgment of the general term of the first department, affirming a judgment entered on the report of a referee.

Prior to February 13, 1880, the plaintiff was employed under an oral contract on a salary by the defendant, to induce persons to take from it policies of insurance on their lives, and while so employed secured a number of policies to be issued and accepted.

It is agreed that prior to this date the plaintiff was not entitled to commissions on the premiums theretofore received, or thereafter to be received on those policies. On the date mentioned, the litigants entered into a written contract, by which the plaintiff was to continue in the same service for one year for $2,000, payable in twelve equal monthly payments. The contract contains this stipulation:

2. The company agree likewise to give you regular renewal commissions on the policies obtained by you when the premiums, shall have been paid to the company.”

The parties agree that “ renewal commissions ” are those paid to agents on premiums received upon policies after they have been in force one year, and that the rates agreed upon were seven and a half per cent on term policies, and ten per cent on all others. The parties also agree that if the plaintiff had performed his contract, and worked to the end of the year for which he engaged, and then left defendant’s service, he would have been entitled to renewal commissions on premiums thereafter received upon such policies as were within the above quoted clause of the contract.

There are but two questions at issue in this case: (1), was the plaintiff entitled to receive commissions on premiums paid on all policies secured by him, or only on those issued before the date of the contract ? (2), was the contract rescinded and the plaintiff’s right to commissions on premiums received after December 31, 1880, terminated by the settlement of that date?

The natural construction of the contract would seem to be that commissions payable under it would be on premiums paid on policies secured by the agent under the contract; but both parties concede that such was not them intent and that the plaintiff was actually paid renewal commissions on all premiums received between the date of the written contract and December 31, 1880, on policies secured by him before the date of the contract, and so far as the question of construction is concerned, we have only to determine whether the clause quoted embraces premiums on policies obtained by the plaintiff while working under the contract

Every other stipulation and sentence in this contract relate solely to services to be rendered under it; and we are unable to find any evidence that policies written under the contract are to be excluded in estimating the commissions payable under the clause quoted, and we think the learned referee correctly construed the contract.

The referee found that the written contract was terminated December 31, 1880, by the agreement of the parties to it; but refused to find that the sum paid the plaintiff on that day was in settlement of all claims under the contract. The settlement was made between the plaintiff and the defendant’s president, who testified: “ He, (plaintiff) then agreed that if we would, settle all that was due up to the first of January, it should be in full of everything, and he would be very glad.” The plaintiff denied this, and testified that nothing of the kind was said. The defendant, relying upon a rescission of the contract and a release from its stipulations, held the affirmative of that issue, and was required to establish it as a question of fact, which it failed to do. There being evidence on both sides of this issue, the decision of the referee cannot be disturbed by this court.

The judgment should be affirmed, with costs.

All concur, except Potter, and Haight, JJ., dissenting.  