
    Justus E. Zender, Respondent, v. The Seliger Toothill Co., Appellant.
    (Supreme Court, Appellate Term,
    May, 1896.)
    1. Master and servant — Contract of employment.
    After some negotiation between plaintiff and some of defendant’s ■officers in relation to his employment by the company, in which he agreed to accept a yearly salary of $1,500, the company wrote him that it had been determined to give him a trial for a month or so, for a compensation of $80 a month, adding, “ The idea is not to cut you down from your original figures. If you will show yourself the man - we want, we will gladly make yearly arrangements to mutual satisfaction,” and, upon placing him in charge of an office, expressed a wish that they would be together many years. Held, that the agreement between the parties was contained in the first letter, and that it was a hiring from month to' month.
    3.- Same — Measure of damage.
    The measure of damages in an action for breach of a contract of employment is the wages up to the trial of the action, if the contract then exists, and not up to the time when the contract would have expired.
    Zender v. Seliger Toothill Co., 16 Mise. Rep. 269, reversed.
    Appeal by defendant'from an affirmance by the General Term of the Oity Court of a judgment in favor of the plaintiff, entered on the verdict of a jury for $300 damages, in an action to recover damages for a wrongful discharge upon a contract for. personal services.
    
      A. Walker Otis, for respondent.
    J. R. O’Gorman, for appellants.
   Daly, P. J.

The defendant, a manufacturing corporation' doing business in Oswego, wanted a salesman .in New York city. The president of the company, Mr. Seliger, and the plaintiff’s assignor, Mr. Peoble, had a conversation in February, 18 9 5, in which Peoble offered to represent the defendant for $2,000 a year, and afterward, lowered his price to $1’500. No agreement was made, but a subséquent meeting was arranged for in Newark to meet the defendant’s treasurer, Mr. Toothill. This meeting was had and the matter was talked over, and the parties separated with the understanding that Mr. Seliger would write Mr. Peoble the following Tuesday or Wednesday. According to Peoble’s testimony no agreement was made at that time.

On the following Thursday, having received no word, Mr. Peoble telegraphed to the parties in Oswego: “It is very necessary for me to hear from you to-day. Answer.” In reply he received the following letter from the defendant, dated February 21, 1895:

“Dear Sib.— Your telegram received. Mr. Toothill and I have considered your application and have come to the conclusion to give you a trial for a month or so for .a compensation at $80 per month. ■ The idea is not to cut you down from your original figures. If you will show yourself to be the man we want we will gladly make yearly arrangements to mutual satisfaction and put you in a position to earn more money than you have asked. Our Mr. Seliger has told you just exactly -what we expect you to do. The experience we had together does not warrant us to do any ■ better for the present, until ybu prove yourself to us a competent man. If you should accept our proposition let us know by return of mail, as we want you to start with us on the first of the month. Please look into our sample-room and let us know how the carpenter is getting along. We remain
Yours very respectfully,
. Seligeb-Tootegcll Co.
“ Dictated by A. E. S.”

Peoble then entered into the service of defendants and remained over a month, when he was discharged. After the first letter the defendants wrote him on February 26 a second letter giving instructions concerning the business and stating: “We do hereby place you in charge of our New York office from March 1st, as per-our previous letters. We hope- that you will be successful and that we will be together for many years to come.”

The court below took the view that there was a conditional contract to employ Peoble for. a year at a salary of not less than $1,500,'his lowest offer, the only condition being that he should show himself -to be a Competent man. The letter of February 21 contains the only agreement of the parties, which was “for a month or so for a compensation of $80 a month.” This was a hiring from month to month and nothing more, as is clearly shown by the words: “ If you will show yourself to be the man we want we will gladly make yearly arrangements to mutual satisfaction and put you in a position to earn more money than you have asked.” The most that can be said of the latter portion of the letter is that it evidences an intention on the part of the defendants, if-plaintiff proved himself to' be the man wanted, to make in the future a general arrangement, if one could be arrived at, which would be mutually satisfactory. Such, a contingent, conditional and indefinite promise cannot furnish a foundation for this- action. If the plaiptiff was retained beyond the first month and 'discharged, without cause, before the end of the second month, he would be entitled, under proper allegations, to- recover the agreed compensation of $80, less, of course, his actual or obtainable earnings for the balance of that month; but under no view of the evidence was he entitled to recover for a breach of contract of employment at $1,500 per -annum. - The agreement between the parties is con-. tained in the letter of February 21, and the court was requested "to so charge, which was refused, .and defendant excepted. ■ The court was also asked to charge that the proper measure of:damages is the wages up to the trial of the action, and. not up to the time when the contract of employment would have expired, if it existed. This was also refused, and was error. Bassett v. French, 10 Mise.' Rep. 672. .

The judgment must be reversed and a new trial ordered, with costs to the appellant, of the appeals' in this court and the City Court and the costs of the former trial to-abide the event.

McAdam and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs of appeals and of former trial to appellant to abide event. ■  