
    Albert S. Newcomb, Resp’t, v. Horatio N. Fraser et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 2, 1892.)
    
    Contract—Hiring—Construction.
    Plaintiff was employed by defendants to introduce and sell certain medical preparations on commission, or for a certain sum per year if commissions did not amount to that sum, the commission on sales to new customers being fixed at forty per cent, less expense of delivery, and the contract provided for a lay off in case of accident delaying manufacturing for over two weeks A fire occurring which caused a lay off, an arrangement was made by which plaintiff was to sell for fifty per cent, less expense of delivery. In an action on the first named contract; Maid, that the two contracts were not intrinsically inconsistent, and that the question whether the last one superseded the first, or was intended as a temporary expedient, was one for the jury to be determined by the attendant circumstances.
    Appeal from judgment of the general term of the city court of New York, affirming a judgment in favor of plaintiff, entered on verdict. , •
    Action on a contract of hiring.
    The contract sued upon was entered into February 1,1886, and was to continue one year at $1,715.50, payable monthly, together with a commission of forty per cent on all sales made by him to new customers, and twenty per cent to old customers. If the sales were made to retail druggists the commissions were to be fifteen per cent, and to wholesale druggists ten'per cent. If the commissions for the year fell below $1,715.50, the plaintiff was to receive that sum in full payment. If they exceeded that sum he was to have the excess. It was also agreed that in case of accident, whereby the defendants were delayed in their manufactory for “ more than two weeks,” the plaintiff was to be laid off and receive no compensation during the “lay off.”
    An accident occurred February 7, 1886, by which the defendants’ manufactory was destroyed by fire. No services of any consequence had been performed under the contract up to this time. • The contemplated “ lay off ” followed.
    About the 4th of March, 1886, the plaintiff claimed that the “ lay off ” ceased. Finally, on April 12, 1886, a new arrangement was made. By the new arrangement the plaintiff was to receive fifty per cent commission on each order, and the writing signed by the plaintiff specified that the commission was to stop January 1, 1837. The plaintiff claims that this was only a temporary or experimental arrangement not intended to supersede the original contract.
    The following is the opinion of the city court:
    Fitzsimons, J.—This This real question litigated between the parties hereto at the trial of this action was, “Did the agreement of April 12th cancel the agreement of February 1st, or was it intended by the parties hereto as a temporary substitute therefor and only to that extent a modification of the same ?
    The question was fully and fairly submitted to the jury and they by their verdict decided that the April agreement was merely a temporary substitute for the February agreement, and rendered judgment in favor of plaintiff.
    In submitting this question to the jury in the manner he did, I think the trial justice did right. The agreement of April 12 is certainly vague, uncertain and indefinite, and the intent of the parties is left in doubt, and, therefore, it was proper, in view of this condition of affairs, to submit the whole matter to the jury and let them, from all the evidence in the case and surrounding circumstances, determine what was the purpose and intention of the parties when they made said agreement. That the trial justice in pursuing this course did the wisest thing, is apparent from a reading of the February agreement. In that paper nothing is left to inference or conjecture; all is plain. The rights and duties of the parties thereunder are clearly set out and defined. From this circumstance I infer that the parties, when they intended to make a final and lasting agreement, expressed in writing their agreements fully, but when they intended to make a mere temporary and shifting agreement they carelessly and uncertainly expressed the same as they did in the April agreement
    The objections of defendants are mainly based upon the theory that the April agreement annulled the February agreement, andas this theory is in our opinion a mistaken one, we believe that the objections are not well taken.
    The plaintiff had the right, in fact it was his duty, to seek employment elsewhere when defendants failed or refused to carry out their agreement with him.
    The jury, by their verdict, decided that the defendants and not the plaintiff refused to carry out the agreement. That the April' contract was not intended by the parties to annul the February agreement; under these circumstances the acceptance by plaintiff of employment from Caswell & Co. was not an abandonment of his contract with defendants, but, upon the contrary, was a duty which the law cast upon him, viz.: to seek employment so as to lessen the damages which accrued to him because of the violation cf his contract with defendants by defendants.
    The judgment must be aifirmed, with costs.
    
      A. B. Tappen (Abel Crook, of counsel), for app’lts; Walter R. Beach, for resp’t.
   Per Curiam.

The chief controversy between the parties was whether the contract of February 1, 1886, was superseded by the instrument of April 12, 1886.

The papers not being intrinsically inconsistent, but their effect, one upon the other, depending on the attendant circumstances and contemporaneous oral explanations, presented a question, not of law for the court, but of fact for solution by the jury; and the verdict being supported by sufficient proof, we have no jurisdiction'to disturb it because contrary to the weight of evidence.

The result of the trial appears to be in conformity with substantial justice, and unaffected by material error; and, accordingly, the judgment is affirmed, with costs.

Daly, Ch. J., Bischoff and Pryor, JJ., concur.  