#### Mort Wolfsheimer, Respondent, *v.*Joseph Frankel and Louis Frankel, Copartners, Doing Business under the Firm Name and Style of Frankel Bros., Appellants.

First Department,

March 19, 1909.

Principal and agent — commissions on conditional sales — contract of employment construed — counterclaim not available to principal. .

Where a contract employing a traveling salesman entitled him to commissions on all goods shipped, retained and paid for by customers solicited by him, he is not entitled to commissions for orders which were subject to cancellation and did not bind the vendee to a sale.

Where the contract provided that the principal could discharge the agent if he failed to make sales aggregating a certain sum during the spring and fall season, the word “season” should be given the meaning customary in tlie territory assigned to the agent and not the meaning attached to that word in the home market.

On the failure of the agent to make the sales required; the principal was justified in terminating the employment.

Where the contract employing an agent requires the principal to advance a certain sum per' month and all necessary traveling expenses “tobe charged to his commission account,” the principal is not entitled to counterclaim for the difference between the sums actually advanced and the commissions actually *earned*although the latter were less than the former.

Appeal by the defendants, Joseph Frankel and another,, copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ISTew York on the 3d day of June, 1908, upon the report of a referee.

*Benjamin*N *Cardozo,*for the appellants.

*William F.*Unger, for the respondent.

Ingraham, J. :

The parties to this action made an agreement, dated the 11th of January, 1907, whereby the defendants employed the plaintiff for a period of two years from February first, as traveling salesman, to cover territory as per list attached thereto. The defendants were to advance the plaintiff $350 per month during the above period and all necessary traveling expenses, “ all of which is to be charged *854to liis commission account,” and the defendants agreed to pay the plaintiff seven per cent on all goods shipped, retained and paid for by customers solicited by him. It was further agreed that if Wolfsheimer should “fail to make sales for two seasons, commencing with Fall season 1907, and Spring 1908, aggregating $80,000, said Frankel Bros, shall have right'to terminate this contract.”

The plaintiff testified .that lie went out on the road for the fall season of 1907 on the 18th of March, 1907; stayed on the road twelve or thirteen weeks, and that brought him back about the latter part of May, 1907; that when he went out on that trip he was to sell goods for the fall of 1907 ; that he went out again on the 15th of September, 1907, and returned about the 20th of November, 1907, to sell goods for the spring season of 1908; that he went to Bocliester on the 16tli.or 18th of December, 1907, to see a firm there; that on December 7,1907, he was called into the defendants’ office and saw one of the defendants, when dissatisfaction was expressed; it was said that the defendants had had a hard season, and the plaintiff said he would look around and see if he could get something.else to do; that he would prefer working for the defendants for less money if the defendants could not see their way clear" to keep him, and the defendant said he would see his brother and see if they could keep the plaintiff; that the other defendant then came in .and said: “ Take á job for six months, and we will take you hack after things brighten up a little,” and said, “if you look for another position, our reference that we will give yon will be the very best in the world, and we are only too sorry to lose yon; ” and with that the plaintiff walked out of the office. On the thirty-first of December the plaintiff asked for his allowance for December, when the defendants offered him a check and asked him to sign a release. The plaintiff refused to sign a release and the defendants refused to give him the check. The plaintiff further testified that his total orders for the fall of 1907 were $36,967.38, of which were canceled orders amounting to $5,749.75, leaving the total sales $31,217.63 ; that the total amount of sales made by the" plaintiff in the two seasons which were retained and paid for by customers amounted to about $50,000 up to December 31, 1907; that lie had received no orders for the firm since December 31, 1907. The plaintiff further testified that he went out on the road *855twice for the fall season; that his territory comprised from Baltimore to Memphis, Tenn., and back; that his second trip lasted one week when he went to Baltimore and Washington; that that was in May, 1907; that all the orders received from the various houses that he named were turned over to the defendants — either personally delivered or mailed to them; that one order he reported from the firm of Greenbaum of Washington was not the same as the other orders, but was a joke; that he received an order from the firm of Pettit &. Co. for 600 suits of clothes. In relation to this order plaintiff testified that he submitted to them his samples and finally they said : “ Have your samples submitted by your firm, and if they are right you can put an order down for 300 of $7.00; 200 of $8.50 and 100 of $10.00. This order is given you conditionally, however — this order is given only on the condition that the samples submitted' are all right;” that a clothing order is not an order until the sizes are given; that subsequently samples were sent and returned by Pettit & Co. as not satisfactory. Plaintiff further testified that there were two seasons in the clothing business^— spring and fall; that the spring season of 1908 ended about July 1, 1908 ; that after he returned from his trip he sometimes received duplicate order's from customers; that there was a difference between an order and a sale in the clothing business; that when he gave a customer the sizes and the lot numbers and if the price is agreeable he buys the goods, then the salesman puts that down and that is an order; that he did not know whether it was a sale if the order was canceled; he knew that he did not get commissions for an order so canceled; that sometimes he got orders signed by the purchasers and specified six other concerns from whom he received signed orders. It is clear that an order subject to cancellation and which did not bind the vendee was not a sale under this contract. There must have been at least a binding contract under which the vendee was bound to receive and pay for the merchandise sold, and the defendant was entitled to terminate the contract if plaintiff did not in the fall season of 1907 and the spring season of 1908 sell $80,000 of merchandise. The only serious question is, whether under this claim' defendants were entitled to terminate the contract on December 31, 1907.

The plaintiff was a salesman employed to sell goods at particular *856places outside of Hew York. He made two trips a year to sell goods for what is called a spring and fall season, and it was sales made on these trips to which the contract evidently related. The fact that retailers in Hew York were in the habit of buying for the spring season through June has no connection with the meaning of this contract which related solely to sales made in other places than the home market of the defendants, and the word *“*season” here, is to be interpreted, considering this custom and the plaintiff’s territory. It is quite evident that both parties considered the spring season, of 1908 at an end on the 31st of December, 1907, and that the sales for the two seasons were much less than the $80,000 specified in the contract. Plaintiff took no objection to the termination of the com tract on this account, and claimed no right to make sales beyond the first of January, but simply said his contract had not expired. The sales that he had actually made, which excluded orders that were canceled, amount to less than $50,000, being $30,000 less than the amount named, which would entitle the defendants to terminate the contract. Thereis not the slightest evidence that would have . justified a finding that any efforts that he could have made before he was required to take up the fall business of 1908 could have supplied this deficiency, and in the absence of any demand to be allowed to continue to make sales I think the defendants were entitled to treat the contract as terminated.

The question is then- presented as to the defendants’ counterclaim. The contract jnovided that the defendants were to advance plaintiff $350 per month during the above period, and all necessary traveling expenses, all of which was to be charged to his commission account. There is no provision that if his commission account should not exceed the amount of these advances, the plaintiff was to repay them. They were to be advanced commissions and to be deducted from the commissions actuEilly earned. After the contract had terminated, as it was on December 31, 1907, the plaintiff was not entitled to further advance payment; but the defendants were not entitled to charge against him or against his advance payments due up to the end of the year, when the contract was actually terminated, the advance payments that had been made under the contract. If the plaintiff’s commissions did not exceed the amount 'of the advance payments while the contract was in force, the. defend*857ants were not entitled to recover the difference from the plaintiff. But, clearly, the plaintiff would not' be entitled to advance payments for any period after the termination of the contract.

My conclusion, therefore, is that the judgment appealed from should be reversed and a new trial ordered befo're another referee, with costs to the appellants to abide the event, unless the plaintiff should stipulate to reduce the recovery to the sum of $350, the payment due for December, 1907, with interest from December 31, 1907, in which case the judgment as so reduced will be affirmed, without costs of this appeal.

■ Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed and new trial ordered before another referee, with costs to appellants to abide event, unless plaintiff stipulates to reduce the judgment as stated in opinion, in which event judgment as so modified affirmed, without costs. Settle order on notice.