Jones v. Oppenheim

FREEDMAN, P. J.

In the absence of a certificate or stipulation that the appeal book contains all the evidence given upon the trial, the exceptions taken by the appellants can only be considered.

Assuming that it was error to exclude testimony concerning the representations made by the plaintiff as to his competency as a salesman prior to the signing of the contract of employment, it was cured by the manner in which the issues were submitted to the jury. They' were instructed that the burden was on the plaintiff to satisfy them that he did comply with the terms and conditions of his contract, and that when he agreed to serve as a salesman he held himself out as one capable of performing the duties he undertook to perform. Whether thereafter he had used his best efforts to , effect sales was left to the jury, as a question of fact. Upon this point there was considerable evidence, and the defendants were satisfied with the charge covering the point, and made no request for further instructions.

Concerning the measure of damages, the charge, as a whole, is free from error. The general'charge is to be considered in connection with the further instructions given by the trial justice in response to questions addressed to him by individual jurors, and the jury were then clearly and unequivocally charged that it was the plaintiff’s duty, after he was discharged, to seek other employment, to reduce the damages, and that, if he was entitled to recover- at all, he was entitled to recover what he would have received if he had not been discharged by the defendants, less any money he was able to earn from any other person.

The record presents no reversible error.

The judgment and order should be affirmed, with costs.

GILDERSLEEVE, J., concurs. MacLEAN, J., taking no part.