
    Huntingdon, Appellant, v. Claffin, Respondent.
    Contract for service. Where, under a contract for a year, as 1859, service is continued in 1860, 'without any new arrangement, it seems, that the terms of the original contract will be understood to be renewed.
    Non-fulfillment of contract from incapacity. The discharge of an employee, because of habits which disqualify him for the proper performance of his duties, works the same forfeiture as a voluntary abandonment of service. By his own fault, the employee is rendered incapable of fulfilling his agreement.
    Application to this case, of Purchase v. Matteson (25 N. Y. 211), and Hoaglamd v. Miller (16 Abb. 103), considered.
   Clerke, J.

From the plaintiff’s own evidence, it appears, that, in January, 1859, he renewed an arrangement with the defendants, by which he agreed to sell goods for them, and to receive a commission of one per cent on all the goods sold. He was to draw $100 per month to live upon, the balance to remain until the 1st of January thereafter; and, if he did not remain until that time, he agreed to forfeit the balance coming to him. The same arrangement seems to have been continued for 1860. The plaintiff says there was no new arrangement made for 1860; therefore, that of 1859 was to be continued, neither party having given any notice to the contrary to the other, although Mr. Olaffin says it was continued by the express agreement of both parties. The plaintiff admits that the arrangement of 1857 continued through the whole thing. Between January 1, 1860, and 23d of November, 1860, the plaintiff made sales of goods for the defendants to the amount of $275,000, which, at the rate of one per cent commission, would entitle him to the.sum of $2,750; of which sum $1,900 had been paid, leaving due to him, if he had fulfilled his agreement, $850; for which, with interest, he demanded judgment. The answer denied each and every allegation in the complaint.

On the trial, the plaintiff testified to the terms of the agreement, which was continued in 1860; that he became intemperate, and was frequently intoxicated in the store, until at last Mr. Claffin discharged him, on the 23d or 24th of November, 1860. Thus, by his own fault, he was made incapable of fulfilling his agréement, by remaining in the store until the end of the year; and he forfeited the balance that was due to him. The commission was to be one per cent on all the goods he sold, provided he remained there; he did not remain there, in consequence of his misconduct; and he is not entitled, according to his own showing, to the balance which he claims.

The complaint was properly dismissed. The exceptions to the rulings at the trial are clearly untenable.

As to the objection that there was a mistrial in ordering judgment to be suspended, and the exceptions • to be heard in the first instance at the General Term, this case does not come within the decision in Purchase v. Matteson (25 N. Y. 211). The evidence here was not conflicting, although evidence was taken on both sides; no material part of it was conflicting.

As to the decision in Hoagland v. Miller (16 Abb. 103), that it is a mistrial to direct that an exception to the dismissal of the complaint he heard at the General Term in tke first instance, I understand this is at variance with the practice invariably recognized by this court.

The judgment should he affirmed, with costs.

All concur.

Judgment affirmed.  