Croger v. F. A. Sales Co.

Bijur, J.

The complaint alleges that plaintiff was hired on November 14, 1917, for one year to sell goods in the state of Pennsylvania for defendant at a commission of 25 per cent; that he entered upon his employment but was unlawfully discharged February 23, 1918; that during the period from November 14, 1917, to July 1, 1918, the sales by defendant of goods in the state of Pennsylvania amounted to some $5,000, on which the plaintiff’s commissions would have been $1,250, no part of which has been paid except the sum of $235.

The defendant, on the other hand, contended that the hiring was merely by the month, and that the commission was only 20 per cent.

No attempt is made in the complaint to distinguish between the cause of action for unlawful discharge and the cause of action for commissions earned during the term of the employment. See Perry v. Dickerson, 85 N. Y. 345. In this connection, the allegation as to the amount of commissions earned between the date of employment and July 1, 1918 — four months after the discharge — is meaningless and confusing. Appellant apparently now claims that the plaintiff was not “ strictly speaking ” entitled to recover in this action any commissions actually earned. On the trial, however, plaintiff, without objection, gave evidence of the amount of sales actually made from the date of his employment to the date of his discharge, and also to July first. Moreover, in a colloquy between court and counsel in the midst of the trial it was pointed out by plaintiff’s counsel that the plaintiff made two claims to recover in the action, one for commissions actually earned and the other foT damages for wrongful discharge, and this evoked neither exception nor criticism from defendant’s counsel.

No motion to dismiss the complaint was made at the close of the plaintiff’s case, and at the close of the entire ease defendant’s motion to that effect was based merely on the ground that “ the plaintiff has failed to substantiate the allegations of his complaint.”

Finally, the learned judge below, at the request of plaintiff’s counsel, charged the jury that “ in assessing the damages they (the jury) may find two items, one, the amount due plaintiff for unpaid commissions, and the other, for damages sustained on account of the unlawful termination of plaintiff’s employment if they find there was an unlawful termination of the employment,” to which no exception ivas taken.

"While, therefore, the complaint is undoubtedly unartificially drawn, the case was tried on .the theory that there were two causes of action and two independent items .of damage to be passed on by the jury. Defendant was really benefited by this mode of trial because from the record it seems to be apparent that had separate suits been brought the aggregate of plaintiff’s recovery could well have been considerably larger than the jurisdictional $1,000 to which the present verdict was confined. In so far as the charge of the judge failed to indicate defendant’s contention that the commissions were to be at a rate somewhat less than that testified to by plaintiff, the' error ivas harmless because it was predicated upon the further instruction: “ If you find that the defendant’s version is correct.” It is self-evident that the jury rejected defendant’s version of the entire transaction and adopted the plaintiff’s.

I think, therefore, that the judgment should be affirmed with twenty-five dollars costs.

Guy, J., concurs.