
    Harvey W. Hebberd, Respondent, v. American Sheet Metal Lath Company, Inc., Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    Contracts — agreement to act as salesman — when terminable — sales.
    By letter under date of November 17, 1913, plaintiff agreed in consideration of $1,800 a year, paid in equal weekly installments, to act as salesman for defendant who agreed to pay such sum provided the sales made by plaintiff should average 5,000 square yards of laths monthly commencing February 1, 1914. Held, that the contract of hiring was for a year, terminable monthly, upon a condition subsequent to be ascertained at the end, either of every month beginning February 1, 1914, or at the end of the entire year.
    Appeal by defendant from a judgment of the City ■ Court of the city of New York in favor of plaintiff, entered upon the verdict of a jury.
    Lewis & McNamara (William J. Lewis and Daniel McNamara, Jr., of counsel), for appellant.
    Lewis F. Glaser, for respondent.
   Bijur, J.

The controversy concerns the interpretation of an agreement of employment of plaintiff by defendant contained in a letter of November 17, 1913, the material part of which is “ The plaintiff, in consideration of $1,800 per year, paid in equal weekly installments, agrees to act as salesman for defendant. * * * The defendant * * * agrees to pay to plaintiff the above mentioned $1,800 per year, provided that the sales of the plaintiff average 5,000 square yards monthly, commencing February 1st, 1914.” Plaintiff claims that on May 1, 1914, he was wrongfully discharged. He admits that up to that time he had not sold laths, the .number of which would average from February first to May first, 5,000 square yards a month.

On a prior appeal (150 N. Y. Supp. 72) a judgment for plaintiff was reversed for errors which are not now material. This court held, what is self-evident, that the contract was a hiring not at will but for a year. The leading ease which holds that a hiring at so much per year is a hiring at will (Martin v. New York Life Ins. Co., 148 N. Y. 121) is to be clearly distinguished, for it is quite apparent that in the agreement in the case at bar the parties contemplated an absolute employment for a definite time, at least until February first, and the only sensible and reasonable interpretation of the contract is that it was a hiring for a year, terminable monthly, upon a condition subsequent to be ascertained at the end, either of every month beginning February first, or, as plaintiff claims, at the end of the entire year.

Since the' handing down of our decision in this case, the Appellate Division in the second department has had occasion to write in a case that is almost on all fours, and based upon the same reasoning. Marshall v. Sackett & Wilhelms Co., 151 N. Y. Supp. 1045.

This court further said, in its previous opinion, that the ambiguity in the contrae!; arose from the use of the term ‘ ‘ average ’ ’ and that parol evidence might be admitted to explain the sense in which the parties had used that term. Such evidence has now been adduced. In substance, it amounts to no more than the claim by plaintiff that the conversation between the president of the defendant and himself, at the time the agreement was made, was to the effect that the average was to be estimated upon the sales beginning February 1st to and including November, 1914. Defendant, on the other hand, gave his version of the conversation to the effect that plaintiff had said that the fall months were bad for the lath business, but that in the spring the sales would be very large; consequently, the agreement was made absolute for the months of November and December, 1913, and January, 1914, because plaintiff conceded that he could not sell much during that time; that the average should be computed beginning February first; and that the intention of both parties was that plaintiff should sell every month, beginning with February first, at least 5,000 square yards of laths, or that, at the end of each month, beginning with that date, the sales that he had made should average at least 5,000 square yards per month.

Although the jury has found in favor of plaintiff, thus adopting his interpretation, it is quite evident that that interpretation is not merely unreasonable, but meaningless. One of the first canons of interpretation is that the meaning given to an instrument must be reasonable, giving effect to all the terms thereof. According to the plaintiff’s version, since the average could not be computed until the end of the entire term, the only effect of the provision was that defendant could discharge the plaintiff when the contract had terminated—a paradox and an absurdity on its face. Defendant’s version, on the other hand, gives weight and meaning to every express and implied provision of the contract. Plaintiff was to have two and one-half months leeway during the dull time of the year — which was not to be taken into consideration at all; but beginning February first, he was bound to sell each month at least 5,000 square yards of laths, either during that month or by addition to the.sales of that month of any surplus in previous months not already applied to make up a preceding deficiency.

Judgment reversed, with costs, and complaint dismissed, with costs.

Guy and Pendleton, JJ., concur.

Judgment reversed, with costs.  