Stern v. Rosenheim

Stone, J., delivered, the opinion of the Court. A majority of the Court think upon a fair construction of the contract between Stern and Rosenheim, that the plaintiff’s right to commissions only began when he had sold the $30,000 worth of goods. He was engaged for a year at a fixed salary, with the further promise that if during that year he sold over $30,000 he should have a commission on the excess. But the contract gave the defendant the right to discharge him at the end of six months.

Unless he had sold $30,000 worth of' goods while in the service of the defendant, we do not think he was entitled to any commissions. But if we concede that if he had remained in the employ of the defendant for six months only, he would have been entitled to commissions on all over $15,000 worth of goods, we think his right to commissions could only exist on the amount he actually sold. That the plaintiff could not claim an allowance for commissions on goods that he might have sold, if he had been allowed to remain for the full period of six months. What he might have sold for the period between 28th August and 1st October, is entirely speculative and conjectural, and depends upon too many contingencies to be allowed as the basis of a recovery of damages.

We, therefore, think that the Court, was in error in allowing the jury to take into consideration the amount of goods that he might have sold, and the judgment should be reversed. As it appears that the plaintiff had actually received the amount of money due to him as salary for the six months, this case will be reversed without awarding a new trial. Judgment reversed, without awarding a new trial. Bryan, J., delivered the following dissenting opinion : Sigmund Rosenheim sued Lazarus Stern for breach of contract of employment.

The defendant made a written contract with the plaintiff to employ him as a travelling salesman for- the term of one year at a salary of eighteen hundred dollars, payable in equal monthly instalments. It was stipulated in the contract that if the sales made by the plaintiff should exceed the sum of thirty thousand dollars during the year, he should receive an additional ■ compensation of ten per cent, on the amount of such excess, and it was also stipulated that the defendant should have the right to annul the contract at the expiration of six months. The plaintiff entered into the defendant’s service on the first of April, 1886, and continued to discharge his duties until the twenty-eighth day of August of the same year, when he was dismissed by the defendant. It was shown that the defendant in May agreed to advance the plaintiff fifty dollars a month on account of commissions to be earned under the contract, and that he had paid him two hundred and twenty-five dollars on this account, and also that he had paid him six hundred and seventy-five dollars on account of salary.

There was evidence tending to show that while in defendant’s employment he had made sales amounting to $13,937.27 ; and that he had procured orders from customers to the amount of $300 or $400, which were sent by them to defendant by mail, and that defendant sold and forwarded the goods in accordance with said orders. The defendant offered evidence tending to show that plaintiff’s sales were about $13,000, and that about the fifteenth of September, he obtained employment as a salesman for a New York house, and that he incurred an expense of about forty dollars in securing this new employment. The compensation to the plaintiff accrued proportionally and progressively and was payable in monthly instalments. When it was agreed that the plaintiff was to ⁵⁰⁹ be advanced fifty dollars a month on account of commissions, it must have been recognized by both parties that some portion of the commissions might be earned monthly.

If the sales exceeded thirty thousand dollars, in the course of the year, commissions were payable on the excess. The monthly commissions would be chargeable on the excess over one-twelfth of this amount. Eo sufficient reason was alleged or shown for the discharge of the plaintiff. If he had been permitted to remain in defendants’ service until the expiration of six months as agreed in the contract, he would have earned nine hundred dollars in salary, and commissions oh such sales as he effected for his employer.

The defendant is bound to make him compensation for such loss as he caused by breaking the. contract, provided it can be estimated with the certainty which the law requires. The loss of salary is readily computed by a very simple calculation.