Geiger v. Harris ( 1869 )

Campbell J.

Harris sued Geiger & Hoyt for his salary for a year, having been employed by them as a traveling agent and they having discharged him without a cause.

The defense set up was that Harris had taken orders during the period of his agency, for Hinman & Co., who were oil merchants. Geiger & Hoyt were in the glass and lamp business, and there was conflicting testimony as to their having agreed to get orders for another oil house for which they were to receive commissions.

The orders which Harris sent or brought in to Hinman were all, — as appeared by the only testimony in the cause, —given to Harris, without his solicitation or procurement, and were transmitted by him gratuitously; while before and after his connection with Geiger & Hoyt, he had obtained such orders from Hinman upon commission.

Plaintiffs in error requested the Court to charge “That if the jury find from the evidence that plaintiff (Harris) was in the habit of procuring orders for oil for Hinman & Co., while in the employ of defendants, and without their knowledge, and that Hinman & Co., were accustomed to pay a commission for-such orders, and that plaintiff knew of such custom, that the obtaining of such orders, was a breach of plaintiff’s duty to defendants, and that this breach of duty was a sufficient justification' for the discharge of plaintiff, even though the original contract was for one year.” This the Court refused, but did charge as follows: “I cannot charge you in the language requested. If you shall find that the plaintiff was in the habit of procuring orders during the time that the defendants were entitled to his services under the contract, then you would have a right to consider that. That would be a breach of the contract, — to be engaged in other business during the time that they were entitled to his services. But you will make the distinction. If you find, as testified to by plaintiff, that he did not seek any orders, that he did not take any time from the defendants, that these were mere requests to him to hand in orders, and, as he testified, and as Hinman testified, they were all Hinman’s old customers, he had no control over them; if you find he merely did that, so as not to interfere with his duties to the defendants, that would not be a breach of his contract. In other words, if he fulfilled his duty to the defendants, as he was bound to do under the hiring, the contract would not have been broken upon his part in that regard; but if you shall find, as I said, that he took the time that belonged to the defendants, and engaged in a business contrary to the hiring, then that would be such a violation of the contract as would prevent his recovery.”

The claim of the plaintiffs in error is placed upon the assumption that an agent employed as Harris was, is during the agency so bound to his employers, that all of his time belonged to them, and all of the profits and' fruits of his labors or occupations, of whatever kind belonged to them and not, to him, so that any use of his time for any but them is a violation of:' duty.

This is á doctrine that cannot be admitted, in regard to free perso'ns. The charge of' the Court below was correct, and the rule laid down is sensible and fair. An agent violates his duty if he neglects to use all reasonable and thorough diligence to further the interests of his employers-He also violates it still more plainly by doing or furthering any business which can in any way hinder or compete with theirs. But there must be seasons of leisure, and there may be circumstances under which their work cannot be done. And in doing their work, he may find it profitable for them to secure bargains or advantages by civilities and services which can in no way prejudice them. They have no claim against him except for faithful service. In every thing else, subject to this, he his own master, and may do what he pleases, so long as they are not prejudiced.

In the present case there was nothing tending to show that Harris had done any more than extend decent civilities, by bringing or sending in gratuitously, orders brought to him by old customers of Hinman & Co., some of which orders were given while he was negotiating sales of wares for plaintiffs in error. It requires no great experience in men to know, that an agent who should be churlish enough to refuse such favors would not be a very popular canvasser. The Court very rightly declined to regard this as any violation of duty in itself, and the jury were sufficiently cautioned to give the employers the full benefit of protection from anything that could have damaged them.

There is no error in the proceedings, and the judgment must be affirmed with costs.

The other Justices concurred.