#### Robert J. Laciar, Respondent, *v.*Jackson Motor Company, Appellant.

First Department,

May 15, 1914.

Principal and agent — contract appointing plaintiff sales manager of automobiles — requirement that agent sell a specified number of ears — when contracts placed with dealers do not constitute actual sales — when discharge not wrongful.

Where a contract employing the plaintiff as a general sales manager to sell and deliver automobiles within a certain territory required him “ to contract for and sell 25 cars ” on or before a certain date, and provided that on his failure to do so the defendant employer was entitled to cancel the contract of employment, it is justified in so doing where the plaintiff within that period merely placed ten contracts with dealers, which, while requiring each of them to deposit $200 from which was to be deducted $20 upon each car shipped by the defendant, only actually bound the dealer to buy one car and provided that if he failed to sell the specified number of automobiles, the balance of the deposit should be applied on charges due the defendant and the rest refunded to the dealer or applied upon next season’s business.

Such contracts placed by the plaintiff merely amount to potential, not actual, sales of the required number of ears, save the one car actually agreed to be delivered; and, hence, he cannot maintain an action to recover damages for a wrongful discharge.

Appeal by the defendant, Jackson Motor Company, from a judgment of the Supreme Court in favor of the plaintiff, *493entered in the office of the clerk of the county of New York on the 22d day of October, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of October, 1913, denying the defendant’s motion for a new trial made upon the minutes.

*J. Hampden Dougherty,*for the appellant.

*James A. Gray,*for the respondent.

Scott, J.:

The action is by an employee against his employer for damages for a wrongful discharge.

The defendant was engaged in the business of selling motor cars. On July 1, 1912, it employed plaintiff to act as general sales manager at a fixed salary and a commission on each car sold and delivered within a certain territory. The agreement contained this clause: *“*It is also understood that in the event of your failure to *contract for and sell*25 cars on or before October 1,1912, while in our employ, this agreement can be canceled at the option of the Jackson Motor Co.” Defendant discharged plaintiff on October 2, 1912, and now justifies its act upon the ground that he had failed to sell the stipulated number of cars on or before October first.

The plaintiff, asserting that he had sold many more than the stipulated number of cars, put in evidence as proof thereof ten documents, called dealers’ contracts, which provided for the potential sale and delivery of about one hundred and ninety cars, and upon the construction to be given to these contracts depends the question whether this judgment should be affirmed or not. It is quite apparent that the construction of the so-called contracts was a question to be determined by the court as matter of law, and this was the view finally taken by the trial justice, although he had received, subject to the objection and exception of the defendant, the evidence of lay witnesses as to their understanding of the nature of the contracts. The learned justice also denied a motion to strike out this evidence, but when he came to charge announced that he had determined to strike all this testimony out of the case and warned the jury to disregard it, saying that as to the construe*494tion o£ the so-called sales contract the jury were to follow only such instructions as might be given them by the court. The record does not show that any such instruction was given. Some question is made as to whether or not plaintiff was instrumental in making all the contracts which he relies upon. In the view we take of the case this is immaterial. The contracts were identical in form, only one being printed in full in the case on appeal. That was a contract between defendant and one H. P. Conover of the city of Holmdel in the State of New Jersey. By that contract defendant granted to Conoyer the exclusive right to sell Jackson automobiles during the continuance of the agreement within a certain designated territory. The 2d paragraph of the agreement reads as follows: “Distributor [defendant] agrees to sell and Dealer [Conover] agrees to buy Jackson Automobiles on the terms stated hereafter (quantities and models specified) deliveries to be made before July 31, 1913, as near as possible as specified below; or as advised later. 1-19-13 Olympic model in the month of September, 1912.”

Standing by itself this clause might be construed as a firm contract for the sale and purchase of a specified number of cars with deliveries as required down to July 31, 1913. Subsequent clauses, however, render its fulfillment entirely optional on both sides. Conover agreed to deposit with defendant $200, from which was to be deducted $20 upon each car when shipped. It is then provided that: “11. If dealer fails to sell full specified number of automobiles balance of deposit money will be applied to charges due Distributor, refunded to Dealer, or applied to next season’s line,” and by the 15th clause the distributor (defendant) reserves the right to cancel the agreement at any time, returning the deposit money. Thus there remained no obligation upon either party to carry out the agreement, and no liability for damages or otherwise in case of the failure or refusal of either to carry it out. It is impossible to say that such a contract constituted a sale of the number of cars referred to therein, except possibly the one car which was agreed to be delivered in the month of September. Treating '¡ach agreement as a sale of the one car specified therein to be delivered, and assuming that plaintiff is entitled *495to credit for having negotiated each of the ten similar agreements read in evidence, he had not succeeded in contracting for and selling twenty-five cars on or before October 1, 1912. The defendant was, therefore, justified in discharging him, and the motion for the direction of a verdict in defendant’s favor at the close of the case should have been granted.

The judgment appealed from must be reversed and the complaint dismissed, with costs to the appellant in all courts.

Ingraham, P. J., McLaughlin, Clarke and Hotchkiss, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.