(86 Misc. Rep. 38)

#### WATTERS v. PLUMBERS’ TRADE JOURNAL PUB. CO.

(Supreme Court, Appellate Term, First Department.

June 18, 1914.)

1. Master and Servant (§ 22*)—Contract oe Employment—Construction.

Plaintiff acted as advertising solicitor for defendant under an agreement contained in a letter of December 4, 1901, at a salary of $15 per week and 25 per cent, commission, the letter specifying that the agreement was to run for a year, subject to abrogation on 60 days’ notice. On *53December 24, 190®, defendant wrote plaintiff: “Tour salary will be increased to $60 per week.” *Held,*that the new arrangement—the last letter—did not terminate the original contract and initiate a new hiring from week to week.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 22; Dec. Dig. § 22.*]

2. Master and Servant (§ 3*)—Creation of Relation—Contract of Hiring •—Construction.

A letter from an employer to an employé, after the employer had terminated the contract of employment by giving notice as provided by the contract, stating, “Will make place for you on the basis of the present arrangement, beginning with the first week in October, figuring at that time on certain territory which will be mutually agreeable,” etc., did not, in the absence of such an agreement as to territory, constitute an agreement, since the minds of the parties had never met on all the essential terms.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 2, 3; Dec. Dig. § 3.*]

Appeal from City Court of New York, Trial Term.

Action by William R. Watters against the Plumbers’ Trade Journal Publishing Company. Judgment for plaintiff, and defendant appeals.

Reversed, and new trial ordered.

Argued June term, 1914, before SEABURY, BIJUR, and PAGE, JJ.

R. E. & A. J. Prime, of New York City (Gustavus A. Rogers and Saul E. Rogers, both of New York City, of counsel), for appellant.

Henry Salant, of New York City, for respondent.

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

*

For other cases see same topic & § number in Dec. *&*Am. Digs. 1907 to date, & Rep’r Indexes

BIJUR, J.

[1] Plaintiff sued defendant for unlawful discharge under an alleged agreement of employment running from year to year. Plaintiff acted as advertising solicitor for the defendant in certain territory, pursuant to an agreement contained in defendant’s letter of December 4, 1901, at a salary of $15 per week and 25 per cent, commission; the letter specifying that the agreement was to run for a year, subject to abrogation on 60 days’ notice. Matters ran on from year to year in this way until December 24, 1906, when defendant wrote to plaintiff: “Your salary will be increased to $60 per week.” This was understood and treated by both parties as abrogating the commission basis, plus the- salary, and establishing a fixed compensation by way of salary alone.

Defendant now claims that this new arrangement constituted a termination of the original contract, and initiated a new hiring from week to week. In this view I cannot concur. Defendant cites, among other cases, in support of its view, Schott v. La Compagnie Generale, 52 Misc. Rep. 236, 102 N. Y. Supp. 901, Molostowsky v. Grauer (Sup.) 113 N. Y. Supp. 679, Romaine v. Beacon, 13 Misc. Rep. 122, 34 N. Y. Supp. 124, and Riley v. Mayor, 96 N. Y. 331, 338. I think the defendant misapplies the rule stated in the last case, which is:

> “A contract raised by implication may be changed, annulled, or modified by a different state of circumstances, *authorizing the presumption of*a new or different contract.”

*54_ In the case at bar it seems to me that the only change which the parties contemplated in their relation was a change of salary, and there is nothing to give rise to the presumption that the old contract, which by implication, was still continued by them from year to year, was otherwise modified. See, also, Wood v. Miller, 78 Misc. Rep. 378, 138 N. Y. Supp. 562, although in that case the paper which constituted the new agreement definitely provided that the relations of the parties should otherwise be unaffected.

[2] On June 3, 1913, defendant wrote plaintiff that, owing to the poor business conditions in his territory, the relations bétween them would be terminated on and after August 1st. It is conceded by plaintiff that this would .be an adequate notice of the abrogation of the agreement then claimed by him to be subsisting between them; but plaintiff testifies that, after the receipt of that letter, he called on defendant’s president, with the result that he was given a letter on July 21, 1913, reading as follows:

> “Will make place for you on the basis of the present arrangement, beginning with the first week in October, figuring at that time on certain territory which will be mutually agreeable. In other words, we will simply figure the time you are away from the office as leave of absence without pay.”

When plaintiff reported for service on October 6th, he was told that he would not be re-engaged, and his claim is that he was at that time unlawfully discharged. As I view it, therefore, the controversy resolves itself into an interpretation of the letter just quoted of July 21st.

. Defendant, by two witnesses, offered, proof that this letter was given merely at plaintiff’s solicitation, and with a view of having him show it to the other employes for his own purposes. This plaintiff denied, saying that there was no conversation, at or about that time, modifying the terms of the letter. But, if that be so, then the letter and its acceptance by the plaintiff constituted a new contract, based upon the old agreement, as modified, plus the terms of the letter. In this respect it differs from the letter construed in Bennett v. Mahler, 90 App. Div. 22, 85 N. Y. Supp. 669, because in that case the communication from the defendant to the plaintiff contained no new terms, but, speaking of, the prior discharge of the plaintiff, said, “that is off,” with the additional statement that plaintiff might take a vacation for a week and then return for the ensuing year.

Regarding, now, the. letter of July 21st in the case at bar as one of the terms of a new agreement sought to be entered into between plaintiff and defendant, it must fail, because it is evident that the minds of the parties had not met on all the essential terms, and that it did not, therefore, constitute a complete agreement between them. The record disclosed that for months plaintiff had been dissatisfied with the territory allotted to him in which to solicit orders.- The new arrangement, in terms, provided that he should have “certain territory *which will be mutually agreeable.”*On this point it seems to me that Mayer v. McCreery, 119 N. Y. 434, 23 N. E. 1045, is decisive, to the effect that the parties had failed to reach an agreement. The objection was distinctly *55raised on the defendant’s respective motions to dismiss the complaint and due exception taken to their refusal.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.