Potter v. Hartnett

Opinion by

Mr. Justice Mitchell,

As the record of the judgment sued upon shows a service of the summons on the defendant within the jurisdiction of the New York court, the judgment is conclusive up to its date, and that part of the affidavit of defence which relates to previous matters is irrelevant and must be disregarded. It does however throw an explanatory light on the agreement subsequently set up, by showing that the original debt was for money claimed to have been advanced by plaintiffs and used by defendant for traveling expenses in plaintiff’s service. The affidavit then avers that it was agreed that if defendant should enter the service of plaintiffs, such entry should be payment in full of any claim they might have against him; that he did so enter their service in September, 1875, and continued therein until the employment was terminated with plaintiff’s consent. September, 1875, was after the entry of the judgment now sued on. The alleged settlement is therefore matter subsequent which is not concluded by the judgment, and the only question left is whether it amounts to a good defence.

It. is objected first that the agreement is too indefinite. In looking at the affidavit in this respect the defendant is entitled to have it borne in mind that the matters set out had occurred sixteen years before and that the delay was not of his making. The important fact is that the entry into service was after the judgment though in pursuance of the agreement made during the pendency of the suit. At the time of the agreement as set out in the affidavit, defendant was in another’s employment and could not at once enter that of plaintiffs. Plaintiffs might therefore properly enter their judgment, because it was not certain that defendant could or would comply with the agreement, and for the same reason defendant could not have set up the agreement as a defence to the pending suit, because as yet it was only an accord. The satisfaction was a subsequent act, not at all inconsistent with the judgment, and not concluded by it.

Further it is said that it does not appear that the agreement was of any advantage to plaintiffs, or at least none beyond what was compensated by defendant’s wages. But this objection overlooks the fact that personal service is always a consideration, and whether it was to be solely for the wages or salary, or for that and the payment of an antecedent debt, is a question of fact in each case. It is common knowledge that in modern business methods, traveling agents or salesmen not unfrequently have a large personal acquaintance and influence which enable them to carry certain buyers, as their own customers, from one house to another when they change. Such salesmen naturally command large salaries, but we cannot say as matter of law that their employers may not be willing to give inducements beyond the salary to get such persons into-their service. That is a matter of contract between the parties.

The defendant swears positively that Ms entry into plaintiffs’' service was agreed to be accepted as full payment, and that he did enter into such service. Taking that to be true, it made out a good defence, and as to its truth defendant was entitled to go to a jury.

The law on this subject is learnedly discussed in Savage v. Everman, 70 Pa. 315, and this case is clearly within the principle therein settled.

Judgment reversed and procedendo awarded.