
    Charles E. Lichtenhein, App’lt, v. Charles E. Fisher, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 14, 1895.)
    
    Master and servant — Wrongful discharge.
    To establish the breach of an agreement on the part of plaintiff to bring to defendant certain customers as part of the consideration of the contract of employment, it must at least appear, in an action for the wrongful discharge of plaintiff, that it was embodied in the contract of employment that, during the term of service contracted for, the employer should have the patronage of all the customers which the employe could personally control.
    Appeal from a judment dismissing the complaint.
    
      John Sabine Smith, for app’lt; Charles D. Ridgway, for resp’t.
   Parker, J.

— The plaintiff was employed by Charles E. Bliss for one year from May 1,1891, at a salary of $1,950 per 'annum, payable weekly. The first of May, 1899, came and went, with the plaintiff rendering precisely the same services-for Bliss as he had during the previous year, and without any other or different arrangement with him o's to compensation; Bliss paying him or each Saturday night $37.50, as during the previous year. The'presumption is, where a party enters the service of another, at a stipulated annual compensation, and continues beyond the year, that he does so on the same terms. Adams v. Fitzpatrick, 125 N. Y. 124; 34 St. Rep. 859; Douglass v. Merchants' Ins. Co., 118 N. Y. 484; 29 St. Rep. 944; Huntingdon v. Claffin, 38 N. Y. 182; Vail v. Manufacturing Co., 32 Barb. 564. As there is no evidence whatever in opposition to this presumption, for the purposes of the present consideration it must be assumed that on the 1st day of May, 1892, the plaintiff entered upon a new contract of hiring with Bliss for a period of one year at the same salary. June 1, 1892, Bliss and this defendant, Charles E. Fisher, formed a partnership, under the firm name of Charles E. Fisher & Co.; and thereafter, and until the death of Bliss, during the latter part of May, 1893, they carried on business of the same character and at the same place as Bliss had done prior to the formation of the partnership. The plaintiff continued to do the same work after the partnership was formed as he had done before, receiving compensation weekly at the same rate until the 12th day of November, 1892, when he was discharged without cause; the position of the defendant being that the hiring was from week to week, and could be terminated at any time. The evidence requires us to say, as we have already said, that, at the time of the formation of the partnership, the plaintiff was in the employ of Bliss under a contract which had about eleven months more of life, and the firm could only become liable thereon by an assumption of the contract While there is no evidence that this partnership contract was in terms assumed by the partnership, there is evidence, we think, which would have permitted the jury to find that the partnership assumed all the contracts and obligations growing out of the business in which Bliss was engaged.

The respondent urges that, if the position which we have taken be correct, nevertheless the judgment dismissing the complaint should be affirmed, because there existed another ground which must necessarily prevent a recovery. He insists that when the plaintiff made his contract with Bliss, in May, 1891, the plaintiff agreed to bring to Bliss certain customers of his own, and that he subsequently did so, but after his discharge, he endeavored to and did take certain of the customers away from defendant’s firm. Thus, it is contended he violated the contract which he is now insisting in this action is valid and enforceable as against his employer. It was a duty which plaintiff owed to the defendant to accept employment of the same general character, if opportunity should offer, to the end that it should go in reduction of the amount of his salary for the unexpired term. This the plaintiff attempted to do, and, while he did not secure a position with a salary, he did find an opportunity to do work of the same general character as that in which he had been previously engaged, but on commission. Among the customers he obtained was one, and only one, who was doing business with his employers at the time of his discharge. Of course, it is not pretended, in the absence of a special contract, with reference to his former customers, constituting part of the contract of hiring, that he would not be permitted to do their business after his discharge, or even soliciting their business. What is claimed is that it was a part of the agreement when he was employed that Bliss should have the business of plaintiff’s customers as far as he could control them, and therefore to secure the patronage of such a customer during the contract period would constitute a breach on the part of the plaintiff, which would deny recovery to him. One difficulty with defendant’s position is that it assumes it to be established as a part of the original contract of employment that the plaintiff agreed that defendant should have the patronage of his customers so far as he could control them, during the term of employment. The evidence upon this point is not very satisfactory, apparently for the reason that the parties did not seem to appreciate at the time that it was a matter of any moment. Possibly, had the question been submitted to them, the jury might have found the fact to be that the plaintiff had contracted with Bliss that he should have the patronage of his customers during the term of employment. But, on the other hand, they might have found, as the proper inference of fact to be drawn from all the evidence on the subject, that the plaintiff tried to impress Bliss as to the value of his services, by telling him about the number of customers whose confidence he had secured by upright dealings. Upon such a finding as the last there could not be predicated a conclusion of law that the plaintiff had violated his contract by accepting or even soliciting the business of such a customer. Men are frequently employed as clerks in stores because they are known to have a large number of customers who bestow their patronage where such clerks'are employed; and if the clerk be discharged during the term of his employment, and goes to another store, of the same character, to take employment, as the law says he must if he has a chance, he does not commit a breach of contract because his friends and personal customers follow him from the old place of employment to the new, whether at his suggestion or otherwise. To accomplish such a result, it must at least appear that it was embodied in the contract of employment that, during the term of service contracted for, the employer should have the patronage of all the customers which the employe could personally control. Whether the one or the other finding of fact should be made are questions for the consideration of the jury.

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

All concur.  