
    Harry J. Hearn, Appellant, v. Charles A. Stevens & Bro., Respondent.
    First Department,
    February 9, 1906.
    Contract of employment on commission — contract construed in light of existing conditions—when plaintiff entitled to commissions on sale of goods removed from his control.
    A contract of employment for a fixed time which gives to the plaintiff certain commissions on the sales of “ cloaks and suits now known as Departments bios. ■21 and 18” entitles such plaintiff to commissions on cloaks and suits which at the time of contract were sold in these departments! but which during Ore term of the contract were transferred by the defendant to other departments. Such contract must be interpreted in view of the conditions existing at the time of contract.
    A plaintiff is not precluded from asserting his rights under such contract by not objecting to the transfer of portions of said goods to other departments.
    Appeal by the plaintiff, Harry J. Hearn,, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day', of June, 1905, upon the dismissal of the complaint by direction "of the court at the close of the plaintiff’s case on a trial at the Hew York Trial Term.
    
      Herbert H. Maas [Charles Grossman with him on the brief] of counsel; Morris J. Hirsch, attorney for the appellant.
    
      Abram I. Elkus [William R. Bayes with him on the brief] of counsel; James, Schell & Elkus, attorneys for the respondent.
   Clarke, J.:

This action was brought to recover $3,077.59 as -unpaid conpnissions alleged to be due under a written contract of employment of the plaintiff by the defendant for the term of three years. The plaintiff entered upon the period of service under the contract and" completed the same. By the terms of the contract plaintiff was to act in the capacity of assistant manager of the departments herein mentioned for a term of three (3) years at a salary which shall equal four (4) per cent of the gross 'profits dn the net retail sales of the eloaks and suits now known as Departments Hos, 21 and 18, and additional bonus hereinafter mentioned, and party of the first part guarantees to the party of the second part that said amount will not be less than Four thousand six hundred, and forty ($4640) dollars per year.” The plaintiff was “ to devote lii'S'whole time, best .energy and ability to the promotion of the welfare of the business.” He wa§ to be-paid seventy or seventy-five dollars each week-and agreed “ to accept that as payment in full for his services should he at any time by any act dr failure on his part to perforin his duty as set forth in this contract terminate said contract'-before two (2) year's.”

“It is understood and agreed that the. difference between" Three thousand six hundred and forty ($3640) dollars (being fifty-two weeks at seventy ($70) dollars per week) and the four (4%) peí cent-of the profits on the net retail sales for the year shall at the .end-of the first year be placed to the credit of the party of .the second part.and remain as a penalty for the fulfillment of this contract by the"party of the second.part.for the second year.' At the end of the second year the aforesaid commissions are to be paid to the party of the second part, and the commission fpr the second year placed, to his credit on the same'terms and conditions as before. .Upon the; completion of this contract at the end of the third year the commissions for the ' second and third years are to be 'paid in . one lump sum together. The party of the- first, part hereby guarantees that said commission shall not be less than One thousand ($1000:00) dollars each year for the three-. (3) years.”. “ Party of the first part .agrees to pay to party of the second part as a further commission, or extra bonus, one-half of one (1) per cent of the.net retail sales of the above department in excess of Four hundred thousand ($400,000) dollars.”

The defendant had a large establishment in the cffy of Chicago. At the time the contract herein was made, and at the time the period of service provided for began, cloaks and suits were sold at retail in departments 18 and 21-of said establishment. It was, of these departments that plaintiff was made manager, and it was upon , the net retail sales of the cloaks and suits therein ’that he was to ' receive four per cent of the gross profits; and if the net retail sales of the said departments exceeded $400,000 he was to receive an extra bonus of one-half of one per cent. "The same goods continued to be sold in those departments during 1901, the first year of 'employment, and.part of the ¡year 1902,' In" the fall' of 1902 the - misses’ cloaks and suits were taken from departments 21 and 18, and, with children’s cloaks and suits, were thereafter sold in a new department known as 24. This new department 24 was considered by the defendant to be within the terms of the contract, and plaintiff was paid for the whole period four per dent of the gross profits of the net retail sales of departments 18, 21 and 24, and, the sales of said departments having exceeded $400,000, one-half of one per cent additional bonus. In June, 1902, the cheaper grades of goods in departments 18 and 21, cloaks and suits, were taken therefrom and, together with furs, waists and millinery, were placed in another new department known as the “ Wabash Annex.” The plaintiff had been asked his opinion in regard to this change, and said that „ he thought it a good one. Thereafter and before the annex was opened the president of defendant handed plaintiff a paper reading: Commencing with May first, 1902, the following additional commissions will be added to your salary: From the Wabash Annex $2.50 for each $1,000 sales made in that department on your lines. Also, four per cent of the gross profits on the net retail sales of silk dress skirts. Also one-half of one per cent of the net retail sales of silk dress skirts over $100,000, or in other words, one-half of one per cent on the total net retail sales of departments 21 and 18 "over $500,000, with the silk skirts included in one of these departments. These extra commissions to' become due and payable according to our regular contract and added as an addition to the compensation therein mentioned.”’

The plaintiff testified that he told Mr. Stevens that he would take this paper home and look it over; that the next morning he returned the paper, telling him that I would not sign it; that I knew that under the arrangement that we had that he would use me all right, which he said he would,- and that I stood ready at any time to do the buying or anything that I was asked to do.” The plaintiff further testified that in another conversation with Mr. Stevens, the president of tne defendant, Mr. Stevens informed him that he had a buyer for the annex department, which I objected to, and I told him that I thought that when he asked me in the first place about it, it would be under the same management of his brother and myself and conducted in that way according to my contract; and he informed me that he could hire as many buyers as he wished.”

The plaintiff has been paid the four per cent on all cloaks and suits sold in departments 18, 21 and 24, and the one-half of one per cent on such sales over $400,000. He has. also received one-half of one per cent on the sales of the cloaks and suits in the annex. His claim is that the cloaks and suits so sold in the annex were goods which were in departments 18 and 21 at the time of the making of the contract and of the commencement of his employment thereunder, and hence were included within the terms thereof, and that, instead of one-half of one' per cent, he should have been paid four per cent, and it is for that amount- he sues. .

The plaintiff. was the only witness examined, and when his case was closed the learned court granted the motion to dismiss, saying : “ There is nothing in the contract between the defendant and the plaintiff that prevented the defendant from opening and operating the so-called annex department. '* * * There was no right in the .plaintiff tinder the contract in suit to receive any compensation whatever upon any of the' business done in the annex. "x" * * If ' the employee, the plaintiff in this case, desired to place any limitation or restriction upon the authority of the defendant as to subsequent changes he should have required by putting language and provision, in. the contract giving him the exclusive right during the period of his employment to the control qf so much of the business of the* defendant as was then embraced in those departments.”

It will be noted that the contract was for three years; that the amount of the salary depended upon the gross profits made in the departments, being a fixed percentage upon, such profits, and that such.percentage was to be reckoned “on the net retail sales of the cloaks and suits now known as Departments ¡Nos. 21 and 18.” It ■ seems to me clear that the. only reasonable interpretation of this contract is that it was intended to and did cover the cloaks and suits then'sold in said departments. Those cloaks and suits were known to both parties. That construction makes the ■ contract clear and determinate. Any other construction would leave it uncertain and loose, and might lead to absurd results. This construction was acted upon by the defendant. When it created department 24 out of 18 and 21 by sending ■ into that, department some of the articles theretofore dealt in in 18 and 21, it paid without questioh the agreed percentage upon all sales in that new department. Why should defendant consult plaintiff about the opening of the Wabash annex, tender him the paper writing in respect thereto, and actually pay to him one-half per cent commission on sales therein “ on your Enes,” unless it realized that it was restricted by the contract ? It seems obvious that the defendant, knew that plaintiff had a good claim and attempted to adjust it by a supplementary agreement.

Counsel for the defendant suggests that plaintiff is precluded by his conduct from making this claim. It does not seem to me that plaintiff could justly be asked to jeopardize liis contract by threats, disputes or litigation during its continuance. It was for three years. It was valuable. The defendant had secured peace for itself by ^ providing that $70 or $75 a week should be full payment for his services “should he at any time by any act or failure on his part to perform his duty as set forth in this contract terminate said contract before two (2) years.” Further, it had provided that all of his remuneration beyond $3,640 a year would be placed to his credit “ and remain as a penalty for the fulfillment of this contract” by plaintiff for the next year. What stronger inducement could there be for waiting until the termination of the contract before seeking to enforce his legal rights ? Having' insured1 itself against trouble defendant should not be heard to complain that it was not made.

If the defendant’s interpretation of the. contract is correct, as found by the trial court, that it had the right to open as many departments as it pleased, then not only this one line of goods could have been taken from the plaintiff, but all his lines could have been taken away, and hence there could have been no sales in departments 21 and 18 of cloaks and suits, no gross profits thereon, and so nothing on which to calculate his percentage.

In Horton v. Hall & Clark Mfg. Co. (94 App. Div. 404) plaintiffs had a contract to sell the goods of defendant, a manufacturing company, for a year on a commission of five per cent. The defendant sold out its business and ceased manufacturing within the year. The defendant claimed that the contract" was not sufficiently definite to obligate it to manufacture any particular quantity, or continue manufacturing, or to prevent the transfer of its business, and that even if it were guilty of a breach of the contract, only nominal damages were recoverable. This court said: “We think it clear that in making this contract there was an implied agreement on tlie part of the defendant to continue manufacturing throughout the year, and that in suspending ■ manufacture and transferring its business it was guilty of a breach of the contract,” and sustained a recovery. .

In Wells v. Alexandre (130 N. Y. 642) the defendants agreed to purchase from. the, plaintiff at a certain specified price all coal necessary for the use Of Certain steamships running on a steamship line between Hew York and Cuba, of which they were the owners." during, the year 1888. -During that year the defendants sold the said steamérs and ceased to operate- them. The court said: “ The evident intention of the parties was. that the plaintiff should furnish' to, the defendants all the coal which the steamers named should require in the work in which they were employed for the year ensuing and that the parties should perform all needful acts to give ■ effect to the. agreement; therefore, if a notice -was requisite to its proper execution; a covenant to give such notice will be inferred, for .any other construction- would make the contract unreasonable and place one of the parties entirely at the mercy of the other. * * * The fact that the defendants deemed it best t¡o "sell the steamers cannot be permitted to operate to relieve them from the obligation to take the coal which the: ordinary and accustomed use of the steamers required.”

In Russell v. Allerton (108. N. Y. 288) it was held that when there is uncertainty or doubt as to the meaning of words or phrases used in a contract,-in Seeking for the. intent of the parties as evidenced by the words used, the fact -that a construction 'contended for would make the contract unreasonable and place one of. the parties entirely at the mercy of the other, inay.be properly taken into consideration. •

In Wilson v. Mechanical Orguinette Co. (170 N. Y. 542) the court said:While it'is true that the vicissitudes of business might have compelled the termination of the- contract before its expjration by limitation, it is obvious that no such contingency ever arose, -x- * -a ]30th parties assumed the. hazard of an enterprise that might prove unprofitable, but neither of them incurred the risk of having the other voluntarily incapacitated from the honest observance of their mutual compact, * * * -The contract is of such a nature that the defendant assumed the implied duty of doing nothing' that would render it incapable of performing its part thereof. By-necessary implication from the language and subject-matter of the contract, the defendant is still bound to do that which it might have done and could have been compelled to do if it liad continued its business after 1887 as it did before that. * * * In speaking of implied promises Judge Finch * * * (in Genet v. D. & H. Canal Co., 136 N. Y. 593) said: ‘They always exist where ecpiity •and justice require the party to do or to refrain from doing the thing in question; where the covenant on one side involves some corresponding obligation on the other; where'by the relations of the parties and the subject-matter of the contract, a duty is owing by one not expressly bound by the contract to the other party in reference to the subject of it.’ ”

It seems to me that these cases establish the rule that the contract must be interpreted in view of the conditions existing at the time the arrangement was entered into, and that if the continuance of those conditions is necessary to the proper performance of the contract, a provision is to be implied that neither party is voluntarily to change those conditions to the detriment of the other. Applied to the case at bar, the provision to be implied was that the cloaks and suits then sold in the department over which plaintiff was- placed should' be continued therein, and if not, that he should still be entitled to his commissions on their sale. It follows that it was error to dismiss the complaint. Of course this opinion is upon the record as we find it. The defendant has not been heard. It may be able upon its proof to establish a good defense.. But as upon a dismissal the plaintiff is entitled to the most favorable view of the evidence, we hold that he has made out a prima facie case.-

The judgment should be reversed and a new trial granted, with costs to" the appellant to abide the event.'

O’Bbien, P. J., Inge a ham, McLaughlin and Laughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  