William Isaacsen, Appellant, v. Benjamin Andrews, Doing Business Under the Name B. Andrews & Co., Respondent

William Isaacsen, Appellant, v. Benjamin Andrews, Doing Business Under the Name B. Andrews & Co., Respondent. Contract of employment of a salesman — when a monthly installment, payable by its terms by the employer, may be sued for without reference to commissions ea/rned. Where a written contract for the employment of a traveling salesman for a year provides that the salesman, shall receive certain commissions on goods sold by him and shall be allowed a drawing-account of §2,750 for the year, to be drawn against in equal monthly installments, and that there shall be no contention as. tó why the salesman did not sell sufficient goods to cover the drawing account so advanced, but that at the termination of the contract the employer or the salesman, as the case might be, will pay the difference between the amount advanced and the salesman’s commissions to the party in whose favor the balance shall be, the salesman, upon proving the execution'of the contract and the-, making of a demand for one of the monthly installments and the employer’s, refusal to. pay it, establishes a prima facie case entitling him to recover the-monthly installment, if the contract is still alive and the salesman has not been discharged -on the date when the installment becomes due. ' This right to recover is wholly independent of the amount of commissions earned at the time- and no proof of such earnings is necessary. Appeal by the plaintiff, William Isaacsen, from a judgment of the. Municipal Court of the city of ¡New York, borough of Brooklyn, second district, rendered on the 22d day of May, 1901, dismissing: the-complaint. Michael Furst, for the appellant. Arthur Furber, for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: In disposing of this appeal on the record as it is presented to us we are compelled to reverse the judgment. The parties entered into a written agreement in December, 1900, • providing for the employment of the plaintiff by the defendant as a traveling salesman for the year 1901. The agreement provided that the plaintiff should receive certain commissions on goods sold by him and on all accounts opened through, his influence in certain territory; that he should be allowed a drawing -account of $2,750 for the year, to be drawn against in equal monthly installments; and that there should be no contention as to why the plaintiff did not. sell sufficient goods to cover the drawing account so advanced; but at the termination of the contract at the end of the year, or sooner, if sooner terminated for any reason, the defendant would pay the plaintiff the excess of his earned commissions over the amount drawn, and the plaintiff would pay the defendant on demand the difference, should the earned commissions be less than the amount drawn. The performance of the agreement on plaintiff’s part was guaranteed apparently by one Daniel Stern, and under it he was allowed to draw the monthly installments for the first three months. His draft for the month of April, however, was not honored, and this action was brought to recover it, being the sum of $229.16. The complaint alleges that by the terms of the contract the plaintiff became entitled to draw it on the 30tli of April, 1901. The answer of the defendant pleads the general issue and, among other defenses, that the plaintiff had been discharged from the defendant’s service under the agreement, prior to April 30, 1901. On the trial the plaintiff was the only witness examined. He proved the execution of the contract, which was duly received in evidence, and also proved the demand for the monthly installment on April thirtieth, and the defendant’s refusal to pay it. This established a prima facie case, which entitled the'plaintiff to recover (Weinberg v. Blum, 13 Daly, 399) if the contract was still alive, and the plaintiff had not been discharged on the date when the installment became due. This right to recover is wholly independent, of the amount of commissions earned at the time, and no proof of such earnings was necessary. The defendant, on plaintiff’s cross-examination, proved that during the month of April some friction was developed between the parties, growing out of a dispute as to. the construction of the contract, and that on the twenty-seventh of' April the defendant caused a paper' to be served on the plaintiff. This paper was produced and marked for identification, but it was not read in evidence and its contents are not disclosed. We cannot assume that it is a formal discharge, still less that it is framed to take effect prior to April thirtieth. The defendant further proved on such cross-examination that his conduct towards the plaintiff in the latter part of the month of April was so far hostile and unfriendly as to justify the latter in treating it as a discharge had he so elected (Bundick v. Strauss,. 51 App. Div. 612), but it is evident that dim plaintiff did not so regard it at the time this action was commenced, arid the complaint is drawn on the theory that the contract is still in force. The complaint cannot possibly be construed as one for ■damages for breach of contract. The plaintiff having established a prima .faciie case to recover under the precise terms of the agreement, and there being no evidence of any other breach of the agreement than the refusal to pay the installment in ¡suit, the nonsuit was manifestly improper. The judgment should be reversed. Goodrich, P. J., Woodward, Jenks and Sewell, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.