Kochmann v. Baumeister ( 1900 )

BARRETT, J.

The ground of the dismissal was that the complaint did not state facts sufficient to constitute a cause of action. The complaint averred the breach of a contract whereby the defendant agreed to employ the plaintiff as a traveling salesman from the 1st day of January to the 31st day of December, 1897. The defendant was a manufacturer of pianos, and the contract recited that the plaintiff was a capable and efficient traveling salesman of these instruments. He was to travel in the defendant’s interests at such times and in such places as she might direct, and she was to pay him five dollars for every piano he sold, and also seven dollars a day for every day “actually employed” by him under her directions, and for her interests, without the city of New York and vicinity. Thus, he was to have the five dollars for every piano sold, whether within or without the city of New York, but the seven dollars a day only while traveling without the city. The question in dispute is, for what part of the year was he entitled to travel outside the city of New York and vicinity? That question arises mainly under the following clause in the contract:

“The party of the second part further agrees that he will travel continuously or otherwise, at the option of the party of the first part hereto, and in her interests, for a period which shall not be more than eight months, if to the party of the first part this shall be deemed necessary during the period of this agreement, and that he will devote his whole time and attention during the term of this contract exclusively to furthering the interests of the party of the first part, and in obtaining customers for the goods, wares, and merchandise manufactured by her, and in disposing of the same.”

The defendant claims that the option given her in this clause was absolute, and that under it she could insist upon the plaintiff’s traveling for a period of eight months, while he could not insist upon traveling for any part of the eight months. She points in aid of this construction to the previous provision, whereby the plaintiff agrees to “travel in her interests at such times and in such places as she may direct.” The plaintiff, upon the other hand, claims that the essential purpose of the contract was his employment as a traveling salesman for the specified term of one year, and that the clause which we have quoted was intended to operate as an optional limitation upon his traveling for that entire term. Thus, according to his contention, the option given to the plaintiff was to permit her to reduce his traveling term to eight months if she deemed the latter period sufficient for her business purposes, and that, subject to that limitation, he was to travel at such times within the year, and in such places, as she might direct. In other words, that she might utilize his services outside the city as she saw fit, so long as she permitted him to travel for at least eight months during the prescribed term. We think the plaintiff’s view is correct, and that it is the only reasonable construction which can be given to the contract. The service of the plaintiff in the city of New York and its vicinity was but a minor incident of the employment. When not traveling, he was to employ his time as a salesman in the city of New York and its vicinity. It is idle to talk of his “traveling” in the city of New York and its vicinity. The parties contemplated traveling in the ordinary sense, — not moving about from street to street or house to house in the city or its suburbs. What the defendant wanted, according to the recital of the contract, and what she bargained for, were “the services of a capable and efficient traveling salesman.” That object runs through the entire instrument. She agrees to engage the plaintiff to travel exclusively for the purpose of selling pianos manufactured by her. He agrees “to travel in her interests,” and, again, “to travel continuously or otherwise,” at her option. If the contract should be construed as the defendant claims, it would be purely unilateral, so far as its real purpose is concerned. She could limit his traveling to a single day, and thus treat the contract as essentially for the plaintiff’s services in the city of New York and vicinity, with as much or as little traveling thrown in as she pleased. This is contrary to both the letter and spirit of the contract. The fair construction of the clause in question, read in connection with the context, and as part of the entire instrument, is that the defendant can require the plaintiff to travel at such times as she pleases, continuously or otherwise, and that she need not thus utilize his services for more, in the aggregate, than 8 months out of the 12. As it was alleged that the defendant refused to allow the plaintiff to travel for more than 3 months out of the 12, we think the nonsuit was erroneous.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

O’BRIEN and INGRAHAM, JJ., concur.