
    William J. Atkinson, Respondent, v. Arnold B. Heine and Others, Appellants.
    First Department,
    November 5, 1909.
    Accord and satisfaction — principal and agent — action for commissions — sale — evidence — burden of proof — trial — charge — contract — when intoxication a breach.
    An accord and satisfaction between a salesman suing for his commissions and his employer cannot he based upon a statement prepared by the latter's bookkeeper and furnished to the former at the end of the year showing the alleged amount of his sales during the year in gross, his drawings and the balance due, a check for that amount to his order and his receipt for the amount “ in payment of salary & commission and all other claims of whatsoever nature or kind,” where by his contract he was entitled to commissions on certain sales whether made by him directly or indirectly, and it appears that he did not then know of the sale upon which he claims commissions.
    But where it appears that in making the sale in question the defendants acted merely as forwarding and collecting agents for a Swiss firm, of which one of them was a partner, but in which the others had no interest, and that plaintiff had nothing to do with the sale, he is not entitled to commissions.
    Where the sale was made in Switzerland by an order given directly to the firm there, and the goods were boxed and addressed to the purchaser and shipped to the defendants who forwarded them unopened arid in the original packages to the purchaser, who in turn sent the money 'to the defendants by whom it was transmitted to the Swiss firm, the defendants cannot be considered as the sellers.
    It is error for the court to charge that the plaintiff might recover if the jury found the Swiss firm to be identical with the defendants, if there was nothing on which to base such finding.
    It is error to refuse to permit defendants to show that they, as a firm, had no interest in the goods, and to charge that, if the sale in Switzerland was for the account of the defendants, the plaintiff may recover.
    The burden was on the plaintiff to establish that the sale was, in fact, made by the defendants.
    Where the plaintiff’s contract with defendants for subsequent years provided that his right to commissions was conditioned upon his due performance of the terms thereof, one of which was “ that he should give and devote all his time, skill and attention to the business” of defendants, prolonged intoxication, which incapacitated him and lost at least one customer, is a violation of the contract sufficient to warrant a rescission by the defendants.
    If the intoxication could have been excused the burden was on the plaintiff to do so, and it was error under the circumstances to require the defendants to justify the discharge and to refuse to charge that the prolonged incapacity from intoxication was sufficient.
    Befusals to charge examined, and held, erroneous.
    
      Appeal by the defendants, Arnold B. Heine and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of Hovember, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of Hovember, 1908, denying the defendants’ motion for a new trial made upon the minutes.
    
      Charles E. Rushmore, for the appellants.
    
      Julius M. Mayer, for the respondent.
   Scott, J.:

Plaintiff was a traveling salesman for defendants. He sues for unpaid commissions upon four causes of action. The complaint was dismissed by consent as to the first and third leaving for consideration only the second and fourth.

The second cause of action relates to a claim for commissions alleged to have been earned during the year 1903. For this year his contract provided that he was to be paid two per cent commission on sales made in St. Louis whether “ made by him directly or indirectly.” The only dispute upon this count is as to one sale to the firm of Eice, Styx & Go., upon which it was conceded that the commission, if plaintiff was entitled to it, would amount to $269.49. Two defenses are urged as to this cause of action: First, that it was not within the contract; second, that there had been an accord and satisfaction between the parties as to the commissions earned in 1903. The defense of accord and satisfaction is based upon a statement furnished to defendants at the end of the year showing the alleged amount of his sales during the year, his drawings and the balance still due, a check for the amount to his order and his receipt for the amount “in payment of salary & commission and all other claims of whatsoever nature or kind.” The statement of sales was in gross, without items, and was made up by defendant’s bookkeeper. It does not appear that plaintiff at the time he received it knew anything about the disputed sale to Eice, Styx & Co. Therefore, he cannot be held to have waived any claim in that behalf by accepting the check and receipting therefor, and the defense of accord and satisfaction was not made out. The evidence, however, points very strongly to the conclusion that plaintiff was not entitled to the disputed commission. He had nothing to do with the sale,'and claims credit for it only upon the ground that it was made to a purchaser in his territory. The defendants constitute the firm of Arnold B. Heine & Co., doing business in New Fork city. At the time the sale in question was made there was a factory in Switzerland owned by a firm known as Arnold B. Heine & Co., a distinct firm of which the defendant Arnold B. Heine was a partner, but in which the other defendants had no interest whatever. The sale in dispute was made in Switzerland by an order given direct to the firm there. The goods were boxed axd addressed to the St. Louis firm and shipped to defendants who forwarded them unopened and in their original packages to Bice, Styx & Co. in St. Louis. Bice, Styx & Co. sent the purchase money to defendants, who transmitted it to the Swiss firm. In the whole .transaction the defendants acted merely as forwarding agents and collecting agents for the Swiss firm, and in no proper sense can they in our opinion be considered as having been the sellers.

The court charged the jury that if they found that the Swiss firm was identical with defendants the plaintiff was entitled to commissions on the sale, and also charged that if the sales made in Switzerland were for account of defendants the plaintiff was entitled to his commissions. As to the first proposition there was nothing upon which to base a finding that the firms were identical. As to the second proposition the court had erroneously refused to permit defendants to show that they as a firm had no interest in the goods and made no profit .on their sale. If the plaintiff had himself made the sale a different question might have been presented, but as he did not and claims commissions solely on the theory that the sale, although made in Switzerland by the manufacturers, was in fact a sale by defendants, the burden was on him to establish that fact which he failed to do.

The fourth count relates to commissions claimed to have been earned during 1905 and 1906. The contract for these years was made in November, 1904, and covered the period from January 1, 1905, to June 30, 1906. • The plaintiff was given a drawing account of $3,600 per annum, payable in installments of $300 per month. The contract provided that: “ No payment of any balance of commission earned by him during the time of this contract shall be paid to him before twelve months of the term of this contract has expired [on January 1,1906], and no further payment after that shall be made until the expiration of the contract ” (June 30, 1906). The plaintiff drew his $300 per month regularly, and on January 1, 1906, there was due him $275.30. He did not draw this, or seek to do so, but continued to draw his $300 per month. Plaintiff’s employment and right to commissions were conditioned upon “the due performance by the party of the second part of all the terms and conditions of this agreement,” one of which was that he should “ give and devote all his time, skill and attention to the business” of the defendants. In February or March, 1906, the plaintiff had been on a rather severe spree in Hew York city, which, nearly led to a rupture of his relations with defendants. He was, however, sent out upon his trip, and in April called upon a firm in Minneapolis, to whom he sold some goods. Before he had completed the sale he was called away on business to another city, and left promising Hufford, the Minneapolis buyer, that he would return in two or three weeks and continue the sale. Instead of returning he went to St. Paul and entered on a prolonged spree, utterly neglecting his business. Hufford made three trips to St. Paul in the effort to find him, and being unable to do so, bought his goods elsewhere. On or about May twenty-third plaintiff was discharged. The court cast upon defendants the burden of justifying plaintiff’s discharge on this state of facts, and refused to charge that his prolonged incapacity arising from intoxication justified a discharge. This was error. Prolonged intoxication, which incapacitated plaintiff and lost at least one customer, was a violation of the contract and a sufficient ground for its rescission by defendants (Huntingdon v. Claffin, 38 N. Y. 182), and if the intoxication had been excused, the burden rested upon plaintiff to explain and excuse it. The court refused to charge the following requests: “ The contract between the plaintiff and the defendants, covering the years 1905 and 1906, was an entire contract, and the plaintiff cannot recover thereunder against these defendants without showing performance of the contract on his part to its very end. The defendants were entitled to the services of the plaintiff until the very 30th of June, 1906, and if the plaintiff committed a breach of the contract on his part prior 'to that time by getting intoxicated and neglecting his business, he did not perform the contract according to its terms, but, on the contrary, committed a breach thereof.

“ If the plaintiff on his part, by reason of his personal misconduct, as" testified to by him, consisting in his getting intoxicated and becoming incapable of attending to his business and neglecting his business while in St. Paul, Minnesota, on and prior to the 23rd of May, 1906, the mere fact that his contract would expire by its terms on the 30th of June following that date cannot excuse him, and he cannot recover on that contract against these defendants, and the jury must find a verdict in favor of the defendants accordingly.”

These requests correctly stated the law applicable to the facts ■established by the evidence, and the jury should have been charged accordingly.

Patterson, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

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