
    Joseph S. Huntington, Plaintiff, v. Horace B. Claflin et al., Defendants.
    1. Under an agreement for the employment of a clerk, at a commission on all business done by him, a monthly allowance to be paid to him on account of it, and the balance not to be paid until the end of the year, he agreeing to forfeit such balance if he should not remain till then, the employer has a right to discontinue his services during the year, and thus prevent him from being entitled to the balance of commissions, provided a sufficient cause therefor arises, such as his intoxication, unfitting him for his duties.
    2. The employer is not bound under such circumstances to dismiss him instantaneously upon such misconduct; and his permitting a day to pass, before discharging him, is not a waiver of the forfeiture.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, J. J.)
    Heard, February 6, 1863;
    decided, February 28, 1863.
    This action coming on to be tried before one of the Justices of this Court and a Jury, and testimony having been given on behalf of the respective parties, and having been closed, upon motion of the defendants the complaint of the plaintiff was dismissed, with the direction that the exceptions be heard in the first instance at the General Term, and in the meantime that judgment be suspended.
    The action was to recover a balance of commissions amounting to $850 and interest, claimed by the plaintiff to be due to him from the defendants, Horace B. Claflin, William H. Mellen, Nathaniel F. Miller, Daniel H. Conklin, and Henry Stone, who compose the firm of Claflin, Mellen & Co., for sales of goods made by him for them, between January 1, 1860, and November 23, 1860.
    The complaint alleged that the plaintiff made sales for the defendants during that period to the amount of $275,000, at a commission of one per cent, entitling him to the sum of $2,750, of which sum $1,900 had been paid, leaving due $850, for which sum with interest from November 23, 1860, he demanded judgment.
    The answer denied all the allegations of the complaint.
    The cause was tried before Mr. Justice Monell and a Jury, on December 17, 1862.
    The plaintiff proved his employment by defendant as a salesman, upon an agreement which he stated as follows: “ I was to make a commission of one per cent on all the goods I sold, and I was to draw $100 to live upon, the balance to remain until the first of January, and if I did not remain until the first of January, I agreed to forfeit the balance coming to me; the commission was to be one per cent on all the goods I sold, provided I remained there.”
    He also testified that the agreement commenced in the . year 1857; that it was continued from year to year, including the year 1860.
    On the 24th of November, 1860, the plaintiff was discharged, for the cause, as stated by himself, of his frequent intoxication.
    The defendants proved that in the end of 1858, plaintiff began to be dissipated; and that the agreement was then made for $100 per month and one per cent on his sales at the end of the year, conditioned on his remaining there the year and on his good behavior. This was continued for 1859. That once or twice during 1859 his habits caused difficulty, but he remained to the end of the year, and was allowed his commissions.
    On his promises of amendment, he was employed for the year 1860; but, according to defendants’ testimony, the compensation then was fixed at $100 per month, and any further compensation at the end of the year was to depend on his sobriety, and to be a gratuity on the part of defendant. Some other details of the evidence are stated in the opinion of Oourt. The variance between the complaint and the plaintiff’s proof was cured by amendment on the trial.
    At the close of the evidence the Oourt dismissed the complaint, and directed the plaintiff’s exceptions to be heard in the first instance at the General Term, and judgment suspended.
    
      D. M. Porter, for plaintiff.
    I. If there was any conflict of evidence, or if there was any evidence to sustain the plaintiff’s cause of action, the dismissal' of the complaint was erroneous.
    II. There were several breaches in 1859, which the defendants knew, yet, notwithstanding, they paid him, which was a waiver for that year. There were several breaches in the early part of the year 1860, which both the plaintiff and Claflin swear the defendants knew; yet, notwithstanding these breaches, they continued him in their employ. This was a waiver of the forfeiture, which satisfied the condition. A condition when once broken, and the parties go on to complete the contract, there is a waiver of the condition. (Vanderbilt v. The Eagle Iron Works, 25 Wend., 665.)
    There cannot be a continuing condition; when once broken; waived, or satisfied, it is at an end, and the condition could not be insisted upon to defeat the contract.
    
      III. But even admitting that the conditional hiring continued, notwithstanding the breaches and waivers, prior to ¡November, 1860, inasmuch as there had been repeated waivers of the breaches during several years in which the plaintiff was in the defendants’ employ, a course bf dealing was established which would entitle the defendant to a waiver upon very slight circumstances. Plaintiff came back to the store and sold goods all day on the 23d of [November; the defendant, Olaflin, saw him, “and did not say a ivord.” This would, under any circumstances, have been a waiver of a forfeiture previously incurred, and no discharge could be based upon it; ‘but where repeated waivers had taken place, if the defendants knowingly allowed the plaintiff to sell goods for one instant on the 23d, without discharging him, it was a waiver, and they could not discharge him on the 24th.
    IV. All the cases which may be cited by the defendants, requiring full performance of the whole term, are only where the contractee himself abandoned the contract. Here the plaintiff was discharged, after he had worked one day after the forfeiture, no new reason arising for the discharge. The defendants are in default.
    
      Wm. Allen Butler, for defendants.
    I. Plaintiff, on his own showing, was not entitled to commissions, unless he remained in defendants’ employ during the entire year. This being a condition precedent he was bound to show performance, or continued readiness to perform, on his part, or that the employment was terminated by defendants without fault on his part. (McMillan v. Vanderlip, 12 Johns., 165; Ripley v. Chipman, 13 Vt., 268; Winn v. Southgate, 17 Id., 355; Jennings v. Camp, 13 Johns., 94; Faxon v. Mansfield, 2 Mass. R., 147; Wolfe v. Howes, 20 N. Y. R., 197; Baker v. Higgins, 21 Id., 397.)
    The proof clearly shows that the sole ground of plain- • tiff’s discharge was his own misconduct.
    III. The fact that defendants, at the close of the year 1859, notwithstanding repeated instances of intoxication, allowed him commissions on the sales of that year, gives no color to the claim for like commissions for the year 1860. (Gardner v. Clark, 21 N. Y. R., 399.)
   By the Court—Moncrief, J.

This action is brought to recover commissions upon sales of the goods of the defendants made by the plaintiff during the period commencing on the first day of January, 1860, and ending on the 23d day of November, 1860. If, upon the evidence given at the trial, the verdict of the Jury in favor of the plaintiff would be set aside, then there was no error in dismissing the complaint.

The plaintiff testified that he entered into an engagement with the defendants in May, 1857; that he agreed to sell goods for them; that he was to have a commission of one per cent on all the goods he sold, and was to draw $100 a month'to live upon, the balance to remain until the 1st of January, and if he did not remain until the 1st of January he agreed to forfeit the balance coming to him; the commission was to be one per cent on all the goods he sold, provided he remained there.

Though he at first states that the last arrangement he made was in January, 1859, afterward he testifies: “I asked Mr. Claflin if I should continue on, and Mr. Claflin said 11 will see.’ ” Again, with reference to the engagement of the year 1860, when asked, “it was not the result of any special, contract with Mr. Claflin?” he replied, “nothing hut the one I ahvays worked on from the beginning.” And again, “I say the arrangement of 1857 continued through the whole thing”

Mr. Hatch, in November or December, 1859, had some . conversation with the plaintiff, and “ asked him what luck he, plaintiff, had had in talking with Mr. Claflin; he said he didn’t know, it was not decided,” &c., and that “ if he was sober and behaved himself he would have rvhat he had before.”

His conversation with Mr. Luff disclosed the same terms of arrangement as existed in 1857.

The defendant Olaflin distinctly so testified upon his examination.

The plaintiff admitted the conversation with Mr. Hatch and Mr. Luff, but asserted that they had made a mistake in the year. It is obvious from the admissions "made by the plaintiff as to his habits, &c., that his memory of dates is not to be deemed accurate when confronted with the recollection of the two or more witnesses. They were fellow clerks, and all engaged in the store of the defendants, and seem to have been friends of the plaintiff, and manifested a most kind disposition towards^ him. To my mind it is quite clear that the evidence in the case would not have sustained a verdict in favor of the plaintiff. The plaintiff then acting under such an engagement, and having $rawn more than the amount of his salary for the whole year, on the 24th day of November, 1860, (being in a condition unfit to be around the store upon the day previous,) was discharged. On his behalf it is contended that the breach of his engagement, if any, occurred on the 23d, and being permitted to sell goods on that day was a waiver of the breach for the year; this is plainly untenable; there is neither principle or authority to be found requiring, under > such circumstances, an instantaneous recognition of the right, and action upon a claim of forfeiture. His agreement was to forfeit all claim for commissions if he did not remain until the 1st of January, 1861, “ and he left the store on the 24th” of November, 1862, and never after-wards returned to service there; the plaintiff himself admits, “there was cause enough” for his discharge. There was no waiver by the defendants allowing the plaintiff to continue at their store during the 23d of November; this would seem to have been the view entertained by the plaintiff; he made no complaint about his being discharged, no claim for commissions was made, as it would appear, until the commencement of this action (in May 1862,) and he did not offer to continue his services during the balance of the year. (Add. on Oont., 433, 436.) The error into which the learned counsel for the plaintiff has fallen, in my opinion, is treating a forfeiture as occurmg on some part of the day, on the 23d of November, when in fact, by the terms of the agreement, the forfeiture arose by reason of his not remaining at the store until the first of January then next. The defendants had a right to discontinue his services, and thus prevent the plaintiff from becoming entitled to commissions, provided that sufficient cause therefor existed; there can be no pretense that the dismissal was without just cause; this case presents an unusual, almost unexampled, Christian forbearance and fraternal kindness towards the plaintiff by the defendant Mr. Claflin, and apparently followed by all the employees in the store.

The exceptions taken at the trial aré untenable, the complaint was properly dismissed, and judgment should be entered thereon for the defendants with costs.  