
    Ross R. Sigsbee, Respondent v. New Era Manufacturing Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Contracts — covenants of — breach of — failure to fix terms for continuance of agreement — actions — when unenforcible — appeal.
    Plaintiff was employed by defendant to go to a certain territory and there hire salesmen, put them out to sell goods and as soon as a check writer got there they were to sell check writers. The check writer was to be.there about the first of February and plaintiff’s commission was to be fifty per cent, and forty per cent was to be paid to the salesman. Held, that in the absence of any covenant on plaintiff’s part either to purchase a definite number of the articles to be supplied defendant or to continue his services for any definite period acquiesced in by defendant there was no enforcible contract.
    The failure of the parties to fix any terms for the continuance of the agreement left it as one terminable at will.
    In an action for breach of the alleged contract defendant on motion to dismiss the complaint on the ground that the contract was too indefinite and uncertain might urge the absence of a specified term for its continuance.
    Even if on defendant’s motion to dismiss the complaint the points that the contract was unenforcible because of the absence of a covenant on plaintiff’s part to purchase a definite number of articles from defendant or to continue in its employ for a definite period were not separately and clearly urged, defendant was entitled to avail itself of them on appeal from a judgment in favor of plaintiff since the objections were not to a defect in formal proof but that plaintiff had failed to establish a cause of action.
    Appeal by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury in the City Court of the city of New York.
    Frederic C. Leubuscher, for appellant.
    Hacker & Bowman (William L. Bowman, of counsel), for respondent.
   Bijur, J.

This action was brought for breach of a contract of employment.

When asked on cross-examination to state “ What the contract was that you made with this defendant company,” the plaintiff answered The contract was I was to go to the southern district of Georgia, which was outlined on this map, and take charge of that property and the development of it; I was to go down there and hire salesmen, put those salesmen out to sell protectors and pencil sharpeners, and as soon as a check writer got there they were to sell check writers. The check writer was to he there about the first of February. The instructions were also as to what the commissions were to be, and so forth, 50 per cent, commission to myself, 40 per cent, to the salesmen, so it left me 10 per cent, difference between the salesmen and myself.”

I am unable to find in this statement any contract between plaintiff and defendant. Defendant urges that there was no agreement on its part to furnish the plaintiff with check writers for sale, and second that the price of the writer to the public was not specified. I think, however, that if the testimony of the plaintiff be believed, as it no doubt was, by the jury, there was ample evidence to sustain a finding that the defendant had agreed to supply check writers by a certain date which was repeatedly postponed, and that the price to the public was plainly indicated as twenty dollars.

The element that I regard as fatal to plaintiff’s recovery is the absence of any covenant on his part either to purchase a definite number of the articles to be supplied by the defendant (Rafolovits v. American Tobacco Co., 73 Hun, 87; Jackson v. Alpha Portland Cement Co., 122 App. Div. 345) or to continue his services for any definite period acquiesced in by the defendant. These elements cannot be supplied by the implication of a covenant to perform services as was done in Moran v. Standard Oil Co., 211 N. Y. 187 and Grossman v. Schenker, 206 id. 466.

In any view, the failure of the parties to fix any term for the continuance of the agreement left it, if there were any agreement at all, as one terminable at will. In reaching this conclusion I may say that I do not confine myself merely to the language of the testimony in the extract which I have quoted, but have taken into consideration all the evidence given by plaintiff as to the terms of his so-called employment. Although the absence of a specified term for the continuance of the contract does not appear to have been urged in so many words, on defendant’s motion to dismiss the complaint, nevertheless, defendant stated as its first ground that the contract is too indefinite and uncertain,” which I think sufficiently indicates both objections to which I háve referred, although defendant apparently laid more stress on the absence of proof upon which any definite measure of damages could be predicated. Even if, however, the precise points were not separately and clearly urged, defendant may avail of them on this appeal since the objection is not as to a defect in formal proof (Ramsay v. Miller, 202 N. Y. 72), but that “ no cause of action has been established by the plaintiff.” Shotwell v. Dixon, 163 N. Y. 43; Miller v. Barnett, 158 App. Div. 862, 868, 869.

Guy and Philbih, JJ., concur.

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