#### Albert Dunkell, Respondent, *against*Henry F. Simons *et*al., Appellants.

(Decided December 2d, 1889.)

A rule that a salesman shall submit to the employer, offers for goods made by customers, when less than the prices fixed by the employer for the goods, is reasonable, as matter of law, and it is no excuse for disobedience that such course would impair the salesman’s dignity in the eyes of the customers.

Gross intoxication of an employe, though produced by drinking liquor for sanitary reasons, is good ground for his discharge.

The question whether an employer had condoned an offense of drunkenness of his employe, by a failure to immediately discharge him, is one of fact for the jury.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered on the verdict of a jury and an order denying a motion for a new trial.

The action was brought to recover for plaintiff’s alleged wrongful discharge by defendants from their employ on January 5th, 1888. Defendants were wholesale and retail commission merchants in New York City, and on April 1st, 1887, employed plaintiff, at a yearly salary of $1,600, as “ salesman, solicitor, and general utility man in and out of store as may be required or deemed advisable.” Defendants justified their dismissal of plaintiff on the ground of insubordination on his part, in refusing to obey defendants’ orders in reference to submitting to them offers made by their customers at their place of business for goods which the plaintiff as salesman was engaged in selling for them, and also on the ground of plaintiff’s drunkenness at defendants’ place of business on December 31st, 1887, unfitting him for his duties as salesman.

*353'At the trial, it appeared that, for several months prior to his discharge, plaintiff had been employed as salesman in defendants’ store, and there was evidence that one of defendants, a few weeks prior to plaintiff’s discharge, instructed plaintiff to submit to such defendant offers which he might receive for goods which were under the prices given by the firm. Plaintiff refused to follow such instructions, claiming it to be beneath his dignity as a salesman.

Plaintiff claimed that the alleged intoxication, given as one of the grounds of his discharge, was caused by whisky and quinine which he took while suffering from an attack of malaria.

The court left it to the jury to say whether the orders of the defendants requiring plaintiff to submit to them offers made by customers of defendants were proper and lawful, and also refused defendants’ request to charge that such orders were reasonable and proper and that plaintiff should have complied therewith, and left the question “entirely to the jury as one of fact,” to which defendants excepted. The court also charged that, if the jury found that the intoxication of plaintiff was caused by medicine or by liquor taken for me dicinal purposes, defendants were not justified in discharging plaintiff, to which defendants excepted.

The jury rendered a verdict in favor of plaintiff for $567.97. From the judgment entered thereon and from an order denying defendants’ motion fora new trial on the minutes, defendants appealed to the General Term, which affirmed the judgment and order; and from that decision defendants appealed to this court.

*Henry B. B. Stapler,*for appellants.

*Henry Parsons,*for respondent.

Van Hoesen, J.

The plaintiff, as the servant of the defendants, was bound to obey the lawful instructions they gave as to the manner in which he should perform the work that they employed him to do. It was no excuse for his dis*354obeying his master’s orders that he thought that his dignity would be impaired in the eyes of some customers if he should, in obedience to the defendants’ commands, apply to the defendants for permission to sell goods at a lower figure than that at which he had first offered them. The defendants had a right to fix the prices upon their own goods, and to insist that any offer of a smaller price should be submitted to them, that they might determine whether or not it would be better to accept it than to have an intending purchaser leave without buying. A clerk who is too dignified to obey such an order places his employer in a most embarrassing position, for the clerk must then usurp the powers of his employer, and reduce the prices as he pleases, or else the price first asked must be insisted upon, even though the customer is, by a refusal to shade the prices, lost to the store forever. A clerk who refuses to obey such instructions ought not to complain if his employer has no further use for him. It was error to leave it to the jury to determine whether such commands of the employer were or were not reasonable. The law adjudges them- to be reasonable, and the judge ought so to have instructed the jury.

It was also error to tell the jury, as the judge did in substance tell them, that the gross intoxication of the clerk would not warrant the employer in discharging him if it were produced by drinking liquor for sanitary reasons. No such palliation -for drunkenness in a clerk while on duty is known to the law. It would be most unfortunate if a clerk, who by drunkenness totally incapacitated himself for the performance of his duties, could compel his master to retain him in his service by setting up the excuse that his inebriety was the result of an attempt to cure the malaria with whisky.

It is for the jury, and not for the court, to determine whether or not the defendants had pardoned and condoned the offense of drunkenness; and the court should tell the jury that it did not follow that the offense was condoned because the employer did not discharge the clerk on the spot; that there must be evidence of condonation, and that the circumstances must show that the employer had forgiven the clerk and that the *355delay of the employer in discharging him was owing to forgiveness of the delinquency, and not for any other good reason.

The judgment should be reversed and a new trial ordered, with costs of the appeal in this court to the defendants to abide the event.

Larremore, Ch. J., and J. F. Daly, J., concurred.

Judgment reversed and new trial ordered, with cost of appeal to abide event.