
    William C Lippus, Resp’t, v. The Columbian Watch Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 7, 1889.)
    
    Trial—Request to submit question to jury, when unnecessary.
    Plaintiff was discharged from defendant’s employment for cause, and brought an action for the breach. At the close of plaintiff’s testimony, and also of the whole case, defendant moved to dismiss the complaint upon the ground that it had a right to discharge the plaintiff if, in its judgment, he was incompetent. This was denied, and the court said the only question he would submit to the jury, was that of damages. Held, that after this statement by the court it was unnecessary for the defendant to ask to go to the jury upon the question whether there was evidence showing reasonable ground for plaintiff’s discharge in order to bring that question up on appeal.
    Appeal from a judgment entered upon verdict rendered by a jury on a trial at circuit, and from an order denying a motion for a new trial.
    
      Philip L. Wilson, for app’lt; Charles H. Machin, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for breach of contract of employment. The defendant agreed to employ the plaintiff, as a traveling salesman, upon certain terms mentioned in the agreement. He was discharged.before the expiration of the contract for alleged cause.

At the close of the plaintiff’s testimony defendant’s counsel moved to dismiss the complaint upon the ground that the defendant had a right to discharge the plaintiff if, in his judgment, he was incompetent.

At the close of the case the motion was renewed, and defendant’s counsel requested the court to direct a verdict upon the same ground. These motions were denied, and exception. The court then instructed counsel that the only question he would allow to be presented to the jury was as to the amount of damages, and the defendant excepted. The case having been submitted to the jury, and the verdict of course being rendered for the plaintiff, from the judgment, thereupon entered this appeal is taken. It is sought to sustain this judgment upon two grounds:

First. That there was no question in the case to submit to the jury except the amount of damages. In other words that the evidence showed no ground whatever for the discharge of the plaintiff, and in the next place, that even if there were such evidence, the defendant not having asked to go to the jury upon that issue, the conclusion reached by the trial court is conclusive.

An examination of the evidence in this case shows that disputes had arisen between the plaintiff and defendant in regard to the manner in which he was performing his duties; that by the terms of the agreement, the plaintiff bound himself at all times to work for the best interests of the defendant, and as economically as possible, and to represent the company, and travel in such territory as might be designated by the managers, and conform to all reasonable rules the company might adopt.

The evidence further shows that in respect to some portions of this agreement the plaintiff refused compliance; that requests made by the company were neglected, and rules for plaintiff’s conduct violated, and it was a question for the jury to determine upon the facts presented by the evidence as to whether the defendant had reasonable ground for the discharge of the plaintiff because of his conduct They certainly had not the arbitrary power to terminate his employment; but, if reasonable grounds existed, then they would be justified, and no recovery could be had by the plaintiff by reason of his discharge. Therefore, there was a question upon this point which should have been submitted to the jury.

. This brings us to the consideration of the proposition that the defendant not having asked to go to the jury upon this point, the conclusion reached by the judge presiding at the trial is conclusive. An examination of this record shows that a motion was made to direct a verdict in favor of the defendant, which motion was denied and exception taken. The court then stated that he would limit the defendant before the jury to the question of percentage and notified the counsel that he might take an exception to such ruling. The court further stated that the only issue of fact to be presented to the jury is the one as to the amount of commissions the plaintiff might be entitled to under the proof. The defendant excepted to this ruling as he had been invited to do by the court. This was a distinct notification to the defendant by the court that he would not submit any other question to the jury than one of commissions, and it would have been an impertinence upon the part of the counsel to have suggested to or requested the court to submit the only other question to the jury which the court had distinctly stated it would take upon itself to decide. Under such a condition of the record, the fact that the defendant did not go through the idle ceremony of requesting that this particular issue should be submitted to the jury in no way deprived him of the right to claim upon this appeal that this question should have been submitted.

Judgment and order appealed from must therefore be reversed and a new trial ordered, with costs to the appellants to abide the event.

Daniels and Brady, JJ., concur.  