Thomas T. Freeman, Appellant, v. Tiffany Studios, Respondent

Thomas T. Freeman, Appellant, v. Tiffany Studios, Respondent. S.econd Department, November 27, 1908. Master and servant — employment on commission—accord and satisfaction. Where an employee entitled to commissions on sales and contracts procured by him, the employment to be terminated at the option of either party, and no claim for commissions to be made on any contract made thereafter, executes a receipt for a specific sum “in full payment of all commissions and all claims of any nature to date, canceling all arrangements heretofore existing regarding the payment of commissions,” there is an accord and satisfaction as to any claim for commissions not fully earned. He is not entitled to recover commissions on contracts secured for the employer while working under a subsequent contract of employment at a certain salary per week. Appeal by the plaintiff, Thomas T. Freeman, from a judgment of the Supreme Court in favor of the defendant, bearing date the 3d day of February, 1908, and entered in the office of the clerk of the county of Kings upon the dismissal of the complaint by direction .of the court at the close of the plaintiff’s evidence upon a trial at the Kings County Trial Term. James A. Allen [Edward Harding with him on the brief], for the appellant. Robert Thorne, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The judgment should be affirmed; there was no evidence on which the plaintiff was entitled to recover in this action. The theory of the plaintiff’s complaint is that he is entitled to the fair value of services in procuring certain contracts for the defendant, or its predecessor, to whose rights and obligations it has succeeded. The evidence offered in support of the claim is a written contract of employment as a salesman on a basis of ten per cent commissions on sales and contracts. The contract provided the terms and conditions on which commissions should become due and payable, and in the case of contracts one-half was to become due on the acceptance of the contract, and the remainder upon the performance of the contract and payment to the company. The plaintiff was to be paid ten dollars per week for expenses, and his commissions were to be settled monthly. It was provided that the “ contract shall terminate Dec. 31st, 1900, or sooner, at the option of either party, on thirty days’ notice to the other, and no claim shall be made for commissions on any contract made subsequent to such termination.” It appears that the parties continued to operate under this contract until the 24th day of July, 1902, when they entered into a written agreement, in the following language: “ Receivéd July 24, 1902, from the Allied Arts Company, Two Hundred and Seventy Dollars ($270.00), in full payment of all ; commissions and of all claims of any nature, to date, the payment of this sum hereby cancelling all arrangements heretofore existing regarding the payment of commissions. “T. T. FREEMAN.” After this the plaintiff entered into the employ of the defendant at an agreed price of twenty-five dollars per week, and during the term of such employment the contracts on which lie now claims commissions were secured to the company. It is claimed that at the time of signing the agreement terminating the original contract, an officer of the defendant agreed that if these particular contracts, on which the plaintiff had been engaged, were secured, the fact would be taken into consideration in settling with the plaintiff, and nearly five years after the contracts were received by the defendant this action is brought to recover the commissions. The plaintiff claims that at the time of signing the last contract the defendant owed him $540, and that the payment of $270 did not constitute an accord and satisfaction, but what that has to do with this case is not very apparent. However, it was not, so far as the evidence shows, a liquidated claim, and it was proper to compromise the matter then open between them in the manner which was done, and it operated to close out the previous contract, under the terms of which the plaintiff was not to demand commissions for contracts made subsequent to the termination, and it clearly appears that no contracts were made under which he now claims until months after July 24, 1902: The right to commissions' generally does not arise until the work is fully performed, no matter how much may have been done in the direction, and the facts in this case show that the plaintiff actually secured the contracts while working for $25 per week, and long subsequent to the' closing of all relations under the original contract. The judgment appealed from should he affirmed, with costs. Jenks, Hooker, Rich and Miller, JJ., concurred. ■ Judgment affirmed, with costs.