Albrecht v. Altoona Textile Co. , 229 A.D. 784 ( 1930 )

Per Curiam.

We are of opinion that there was no consideration for the alleged modification of the contract whereby defendant claimed that after July 1, 1928, plaintiff was not entitled to commissions. The discussions with reference to a change in management took place prior to July 1, 1928, from which time it is claimed the modification was in force. In the face of defendant’s assertion that it would bring in a third party to take care of the sales management, the plaintiff either remained silent or stated that he had no objection to association with another sales manager. But up to the time that the new sales manager joined the defendant, not a word was said about the matter of commissions to be paid to the plaintiff after July first. The new sales manager began his service on July 8, 1928, and it was not until two or three months thereafter that the first and only discussion took place with reference to the defendant’s requirement that plaintiff forego his commissions. The proof fails to show that defendant gave up any right by virtue of any promise on the part of plaintiff, either actual or implied, to forego his commissions from July 1,1928. There being no consideration for plaintiff’s alleged promise, there was no valid modification. The question of waiver is not in the case. It was not submitted to the jury. Furthermore, there is proof by plaintiff, confirmed by testimony of defendant’s treasurer, that plaintiff had demanded checks for commissions accruing subsequently to July 1, 1928. The judgment should be reversed upon the law and the facts, and a new trial granted, costs to appellant to abide the event. Young, Kapper and Carswell, JJ., concur; Lazansky, P. J., and Hagarty, J., concur for reversal but vote for a direction of judgment in favor of plaintiff. Judgment reversed upon the law and the facts, and a new trial granted, costs to appellant to abide the event.