Bloom v. P. Cox Shoe Manuf'g Co. ( 1894 )

FOLLETT, J. (dissenting).

The plaintiff was employed for the year 1892 as a traveling salesman on a salary of $1,800 and expenses. He made two extended trips through the South, and several short ones in this state, and he sold only $180 worth of goods, his traveling expenses being $350. About this there is no dispute. Afterwards, he was directed to sell in the city of New York and vicinity, which he did for a time; his aggregate sales being $2,120. The defendant desired that he should continue to sell to the trade in New York and Brooklyn, but the plaintiff refused, and he was discharged June 24,1892. His total sales for six months were $2,300, which cost the defendant, in salary and expenses, $1,250. The verdict that the plaintiff was a competent salesman and performed Ms contract is contrary to the weight of evidence. In contracts for personal services, the incompetency of the employé to perform the service wMch he has undertaken is a sufficient ground for his discharge. It seems to me that the evidence shows that this plaintiff was either incompetent or unfaithful, and that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.