
    William E. Ball, Resp’t, v. Livonia Salt and Mining Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    1. Contract—Employment—Discharge.
    Under an agreement to employ the plaintiff as a traveling salesman, to cover such ground as the defendant may designate, at a certain salary per month and actual traveling expenses, the latter is justified in discharging the former for not following the route list provided for him, and for returning excessive expenses.
    2. Same—Evidence.
    In an action to recover salary after such discharge, evidence as to the items of such expenáe account is competent on the part of the defendant.
    Appeal by the defendant from a judgment of the district court in the city of New York for the first judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. Action to recover damages for wrongful discharge. The opinion sufficienty states the material facts.
    
      Henry B. Twombly, for app’lt; David Welsh, for resp’t.
   Giegerich, J.

Plaintiff was employed by defendant under an agreement in writing containing the following provisions : “ We are willing to engage you as traveling salesman, to cover such ground as we may designate, from time to time, at a salary of $100 per month and actual traveling expenses incurred in the interests-of our business.” Plaintiff entered upon the performance of his duties, under this contract on the 22d day of May, 1893, and on the 22d of July, 1893, he was discharged. In justification of the discharge, the defendant, on the trial, proved that the plaintiff did not follow the route list provided for him ; that from July 13th to July 17, 1893, he was at Spring Lake, N. J., on a pleasure trip, after he had notified defendant that he would stop over Sunday (16th),at Elmira, N. Y., and that his expenses were excessive. On the 14th day of July, 1893, the defendant mailed to the plaintiff a letter which contained directions as to certain prices to be charged a customer in Elmira, named William Am berg. This letter in the regular course of the mail should have reached the plaintiff on Saturday, July 15th, but according to his own testimony, he changed his route and was absent from Elmira on July 16th, and conseq'ently did not receive the letter until after he had made a sale to the customer in question. On Monday, July 17th, plaintiff wrote defendant from- Elmira : “ Sorry you did not let me know about William Am berg, I might just as well have got' former prices. * * * I went up last Sunday to Ithaca; there is nothing there; and doubled back here, and got here this p. m.” If the plaintiff had attended to business, he would have received this letter on Saturday at Elmira, and been able to carry out its directions. The plaintiff also testified on the trial that he did not go to Ithaca, and endeavored to explain this letter by saying that he had changed his route after he wrote it. He certainly knew on Monday whether or not he had spent the day before in Ithaca. This letter alone is sufficient proof that his employers could not trust him. The plaintiff also admitted, on the trial, that he was in Spring Lake on Friday and Saturday, July 14th and 15th, which trip, it appears from the evidence, was detrimental to the defendant’s interest. The plaintiff also admitted, he did not to.some'extent follow his route lists, although he knew when he was employed by the defendant that the following of the route list closely was stated to be of the greatest importance to the com- » pany. These and other uncontradicted facts, above detailed, justified, in our opinion, the dismissal of the plaintiff, Schouler on Dom. Rel. § 462 ; Wood’s M. & S., § 116 ; Dunkell v. Simons, 15 Daly, 352 ; 27 St. Rep. 811, though they may not have been specially assigned at the time of the discharge ; 14 Am. & Eng. Enc. of Law, 792, 793; Wood’s M. & S., § 119; Jackson v. N. Y. Post Graduate, etc., Hosp., 6 Misc. Rep. 101; 55 St. Rep. 495, general term of this court. It follows, from these views, that the judgment rendered is not supported by the evidence. The justice also erred in excluding the question : “ How do you made up the hotel bill of $16.25 when you were traveling at the company’s expenses only three days that week ? ” and, also, in excluding the itemized statements of plaintiff’s expenses. The fact was material as showing that either he had charged his expenses during his pleasure trip to the defendant, or that the bill was excessive for three or four days’ expenses. The bills were material to show whether his expenses were so excessive as to justify the defendant in discharging him for that cause. For "these reasons the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

BlSCHOFF, P. J., concurs.  