
    William E. Ball, Respondent, v. The Livonia Salt & Mining Co., Appellant.
    (New York Common Pleas— Additional General Term,
    May, 1894.)
    Where a traveling salesman, employed to cover such ground as should be designated by the employer, fails to cover the route list given him, but deviates therefrom for a pleasure trip for several days, whereby he fails to receive instructions as to prices, to the detriment of the employer, and sends misleading letters as to his movements, the employer is justified in discharging him
    In an action for wrongful discharge in such a case, it is error to exclude a question put to plaintiff as how he made up his hotel bill to the amount stated when he was only traveling at the employer’s expense for three days of the week; it was material to show either that he had included the expenses of the pleasure trip or that the bill was excessive.
    So, also, itemized statements of his expenses are material to show whether his expenses were so excessive as to justify a discharge for that cause.
    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 sufficiently states the material facts.
    
      Henry B. Twonibly, for appellant.
    
      David Welch, for respondent.
   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 interest 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 13 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, sixteenth, 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 Amberg. This letter, in the regular course of the mail, should have reached the plaintiff on Saturday, July fifteenth, but, according to his own testimony, he changed his route and was absent from Elmira on July sixteenth, and consequently did not receive the letter until after he had made a sale to the customer in question. On Monday, July seventeenth, plaintiff wrote defendant from Elmira: ■ “ Sorry you did not let me know about William Amberg; 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 fourteenth and fifteenth, 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 company.

These and other uncontradicted facts, above detailed, justified, in our opinion, the dismissal of the plaintiff (Schouler Dom. Rel. § 462; Wood’s Mast. & Serv. § 116; Dunkell v. Simons, 15 Daly, 352), though they may not have been specially assigned at the time of the discharge. 14 Am. & Eng. Ency. of Law, 792, 793; Wood’s Mast. & Serv. § 119; Jackson v. N. Y. Post Graduate, etc., Hosp., 6 Misc. Rep. 101.

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 make up the hotel bill of sixteen dollars and twenty-five cents when you were traveling at the company’s expense 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.

Bischoff, J., concurs.

Judgment reversed and new trial ordered, with costs to .appellant to abide event.  