
    Robert Flaherty, Respondent, v. The Herring-Hall-Marvin Safe Co., Appellant.
    (Supreme Court, Appellate Term,
    January, 1898.)
    1. Master and servant — Offer of a new rate of compensation — Dismissal— Measure of. damages.
    Where á servant, working for wages and commissions, is notified by the master that he will thereafter receive another rate of compensation, and, having taken no action upon the offer, is discharged at the end of that week, he may recover compensation therefor upon the terms of the original employment.
    2. Same — Bar — Another action pending.
    An action already brought to recover damages of a corporation for having prevented its servant from earning commissions, is not a bar to a second action brought by him against it for commissions earned.
    3. Evidence — Code of Civil Procedure, section 829, does not apply to transactions with deceased officers of corporations.
    A corporation cannot invoke section 829, Code of Civil Procedure, in order to exclude testimony of a conversation had by a party with its managing director, as that section has no application to personal transactions with deceased officers or agents of a corporation.
    Appeal by defendant from a judgment of the justice of the First District Court in favor of plaintiff for $61.66 damages and costs. ' :■
    Lawrence & Hughes, for appellant.
    H. P. Okie and respondent in person, for respondent.
   Daly, P. J.

The plaintiff was employed by the'defendant as salesman to get orders for safes and work, and was to receive a salary of $30 per week and a commission.' This action was brought for salary for the week ending July 11, 1896, being, as he claims, the last week of his service; and also for a small sum as commission. The defendant contends that he was discharged one week previously. It appears from the evidence that on the 3d of July, 1896, he received a letter from the defendant stating that on and after that date his salary would be $35 per week, without commissions either on work that he had already furnished specifications and bids for or that might come up in the future. He attended at. the defendant’s place of business every day as usual during the ensuing week and endeavored to obtain a modification of the company’s decision, but without success, and, on the 11th of July, 1896, received a further letter stating that, since he did not accept its proposition of the third instant, his connection with the company ceased on that date, and that since that date he had not been in the employ of the company nor had any connection, with them.

The- discharge of the plaintiff from his employment undoubtedly occurred at the timé of the last letter. The defendant, having in effect given plaintiff one week to consider its proposition, could not make its decision to discharge him for refusal to accept relate back to the time of that proposition. It is equally clear that, until-he was discharged, his salary and commission remained át the original rate, since -it was conceded by defendant’s letter that he had not; accepted the proposition for a reduction. After notifying him of his discharge for not accepting, defendant cannot claim that he remained over under an implied acceptance. He was, therefore, entitled to salary at the old rate and commissions -earned.

The commissions claimed ($15) accrued after his discharge in connection with orders procured by-him prior to his discharge. They were for extra work on those orders and his testimony was that they were payable under the custom of the Marvin Safe Company' as specified in his agreement. The defendant opposed the claim for commissions on the ground that plaintiff had another action pending for' commissions. His complaint in an action in the Supreme Court, commenced after his discharge, to recover damages, for preventing the plaintiff from earning commissions was put in evidence. That complaint was based upon a clause of his agreement with the company which gave him the exclusive privilege of closing up sales to parties with whom he opened, negotiations; and it was alleged that sales of a large number of safes and vaults were in course of being negotiated by him and would havé been successfully terminated, if it had not been for defendant’s breach of the agreement in réfusing to complete such sales through him, and defendant’s closing them itself after discharging him.

The claim in that action is for damages for preventing the plaintiff from earning commissions; while.the claim in this action Was for commissions actually earned upon orders .obtained before his discharge. The pendency of the Supreme Court action was, therefore, not a har to the present action.

The plaintiff established his agreement with the company by proof that, according to a conversation with Mr. Marvin, defendant’s managing director, plaintiff drew up and signed a paper containing certain terms of employment, of which he sent a copy to Mr. Marvin, who told him he had received it and that it was all right and that Mr. Herring would set him at work; and that subsequently Mr. Herring set him to work and afterwards fixed the amount of salary and commissions he was to receive. All this testimony was competent to establish a parol contract of employment. Objection was made to plaintiff’s conversations with Mr. Marvin, because the latter had since died; but nothing in section 829 of the Code applies to personal transactions with deceased agents or officers of corporations.

The judgment should be affirmed.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  