
    Thomas J. Lee, Respondent, v. Smith, Gray & Company, Appellant.
    Appeax from a judgment in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial.
    John T. Easton, for appellant.
    Arthur Hurst, for respondent.
   Schuchman, J.

The action is brought to recover damages for the breach of a contract of employment of the plaintiff as a salesman and general manager of the defendant’s merchant tailoring department from on or about the 28th day of February, 1898, to January 1, 1899, at a weekly salary of forty dollars and a commission of five per cent, on all sales 'made through the plaintiff’s personality or personal efforts. The plaintiff claims that he was wrongfully discharged on October 25, 1898. The burden of proof to establish the contract of employment for the aforesaid period was on the plaintiff. The plaintiff, to substantiate said contract, testified as a witness on his own behalf that one Hillard F. Smith, who acted fon and on behalf of the defendant, told him, You will have a commission upon every sale, and in addition to that you will have, by the first of January a certain profit upon the showing department,” and “ After I was about four months in the employ of the defendant, said Smith told me (You run this department until the first of January,’ and Smith asked me ‘ How long will it take you to stop ’ (meaning to finish the work which I then had on hand) ? I said I might be able to get through this work in a week, in a month or perhaps not until the first of January.” Thomas McCord, a witness called on behalf of the plaintiff, testified as follows: I heard Mr. Lee (the plaintiff) ask for a specific engagement and I heard Mr. Smith say that his word was good enough for an engagement up to the end of the year. I do not know what his idea was, he said that his word was good enough to the end of the year.” This is all the evidence in the case in regard to the establishment of the contract of employment. The defendant denies that there was an employment for a fixed period. In our opinion, this evidence is insufficient to establish a contract of employment for the period mentioned.

The verdict, therefore, is not sustained by the evidence and the judgment and order appealed from are reversed and a new trial granted, with costs to the appellant to abide the event.

-McCarthy, J., concurs.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event.  