
    William T. P. Brown, Resp’t, v. The Baldwin & Gleason Co., Limited, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    1. Trial—Waiver of right to go to the jury.
    In an action for damages for the alleged wrongful discharge of plaintiff - from defendant’s service the appeal was from the judgment only, and the case exhibited no statement that it contained all the evidence. The defendant made no motion for a nonsuit, nor asked the direction of a verdict in its favor. The plaintiff asked such a direction, and it was granted. Thereafter the defendant asked to go the jury upon the question of the amount (of damages). Held, that this was a waiver of the right to go to the jury upon any other question, e. g., the question of wrongful discharge.
    2. Master and servant—Discharge—Evidence—Custom.
    In an action for wrongful discharge, the defendant offered to prove that by the custom of that trade it was the duty of a traveling salesman “ to get up his own samples.” This was excluded as immaterial. Held, error.
    3. Same—Drunkenness of a salesman.
    In such an action, under a general denial, the defendant may prove that the plaintiff was discharged for drunkenness.
    4. Same.
    The agreement of the parties was that plaintiff should receive twenty-five dollars a week, his ‘' traveling expenses to he borne ” by the defendant, Held, that a recovery for “hoard, car fare and lunches” incurred after he had left defendants’ service was improper.
    Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff on a verdict, in an action for damages by wrongful discharge from defendant’s service.
    
      De B. Wilmont, for resp’t; E. G. Duvall, Jr., for app’lt.
   Pryor, J.

The appeal is from a judgment only, and the case exhibits no statement that it contains all the evidence. We are confined therefore, to the review of errors of law duly raised by exceptions in the record.

Appellant urges that the trial court erred in directing a verdict; and, since the plaintiff himself was the only witness in his behalf, the contention would probably be valid, if the appellant had not ‘ waived its right to go to the jury on the question of the wrongful discharge of plaintiff. Kavanagh v. Wilson, 70 N. Y., 177; Gildersleeve v. Landon, 73 id., 609; Wohlfahrt v. Beckert, 92 id., 490. True, the appellant made no motion for a nonsuit or the direction of a verdict; and had it rested there, it might now claim that whether respondent was wrongfully dismissed should have been submitted to the jury on conflicting evidence. Exit, appellant followed respondent’s motion for a direction in his favor by a request “to go to the jury upon the question as to the amount.”

Here was a distinct concession that, upon the evidence, there was no issue for the jury except the amount of damages, and a waiver of the right to go the jury on any other question. Since the evidence as to the fact was contradictory, we are to assume that the court would not have taken the question of respondent’s discharge from the jury had not appellant, in effect, admitted that the only issue for them was the amount of damages. Having so assured the court at' the trial, appellant cannot now and here retract the concession. Hence, the wrongful discharge of respondent is, on this appeal, an unimpeachable fact

But, if the court erred in the rejection of evidence proving the misconduct of respondent as the cause of his discharge, such error would be fatal to the judgment; for we could not say but that, had the trial judge received the evidence, he would have believed it, and have considered it as sufficient in law to justify respondent’s dismissal.

It appears by the contract between the parties that respondent was engaged “ to serve this company exclusively and actively as travelling salesmen for our Christmas, Valentine and Easter novelty business;” and the evidence tended to show that respondent was discharged because “ he refused to make up samples.” Appellant offered to prove that by the custom of the trade, it was tire duty of a travelling salesman “ in that line of business to get up his own samples.” The evidence was objected to on the ground that it was “ irrelevant and immaterial, the contract speaking for itself;” and being excluded, appellant duly excepted.

Irrelevant and immaterial the offei’ed evidence certainly was not; for it was directed to the essential issue in the case, the wrongful discharge of respondent. Doubtless the learned trial judge rejected the evidence on the ground that a written contract cannot be added to or in any way altered by oral testimony.

By the contract, the respondent was “ to serve as travelling salesman;” but what were his duties as such is not defined, nor does the law determine them. Parol evidence of trade usage ascertaining those duties was, therefore, in no sense contradictory of or inconsistent with the terms of the written instrument, but tended only to show the full meaning and effect of the words “ travelling salesman. ” “ Parol evidence is competent to annex incidents to written instruments, to explain a particular word or phrase appearing therein, or to clear up and render definite and precise what was indefinite and ambiguous.” Broom’s Comm, on the Com. Law, 518, (3d Eng. Ed.) In Metzner v. Bolton, 9 Exch., 518, a leading case, the declai'ation stated that the plaintiff entered into the service of the defendant as a commercial traveler at a yearly salary, and that the defendant agreed to continue him in his employ for a whole 'year, but discharged the plaintiff before the expiration of the time specified. The court ruled that evidence of a usage in the trade to dismiss with three months' notice was admissible to annex a term to the written contract; for, “ generally, usages are tacitly annexed to all contracts relating to the business with reference to which they are made, unless the terms of such contracts expressly or impliedly exclude them.” 2 Cowen & Hill’s Phillips on Evid., notes 510, 522 ; Hagan v. Machine Co., 9 Hun, 73; Knapp v. Warner, 57 N. Y., 668; Boorman v. Johnston, 12 Wend., 573. The evidence offered was clearly competent and its exclusion was error.

Another error by the court below also requires a reversal of the judgment, namely, the exclusion of evidence of plaintiff’s drunkenness. It was part of his case to prove, as alleged, his wrongful discharge; and, in conformity with a familiar rule, the defendant had the right, under a general denial, to negative any fact essential to the cause of action. Accordingly it was open to the defendant on the pleadings to show that the plaintiff’s dismissal was rightful because of intoxication. The evidence tendered should have been received.

Ruling by the learned trial judge, not noticed in appellant’s argument, should be indicated that it may be avoided on the new trial. By the contract it was stipulated that plaintiff should receive twenty-five dollars a week and his “ traveling expenses be borne ” by the defendant. By the verdict plaintiff was awarded $220 expenses for “ board, car fare and lunches,” incurred when he was no longer in defendant’s service and while he was “ m business for himself.” We are aware of no principle or precedent which justifies this recovery.

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

Daly, Oh, J., and Bischoff, J., concur.  