Opinion
March 31, 1910.
Bennett E. Siegelstein, for the appellant.
L.E. Oppenheim [ Henry J. Mayers with him on the brief], for the respondent.
Prior to October, 1908, defendant had been employed for several years as a drug clerk by Jacob Rosenberg, plaintiff's assignor. At that time he left his employ and made arrangements to open a drug store on his own account in the immediate neighborhood. At the solicitation of Rosenberg he consented to abandon his project and return to his service. There is some conflict of evidence as to the terms of the contract then made, but if we accept Rosenberg's version thereof it was that defendant should be paid $153, the amount of expenses incurred by him in connection with fitting up his new store, that he should be employed for one year at a salary of $25 a week, and that he should not open another drug store within four or five blocks of that owned by Rosenberg. In the latter part of January, 1909, defendant left Rosenberg's employ and did open a drug store upon the same block with him. This action is brought to recover the $153, which it was claimed was paid to the defendant.
The first question in this case is who broke the contract? The jury found that the defendant was guilty of the breach. We are asked to reverse the judgment entered on their verdict upon the ground that it was against the weight of the evidence. Defendant contends that the contract of employment, and that as to his refraining from engaging in business as Rosenberg's immediate competitor was an entire one. We think that it was. Defendant further contends that the evidence establishes that Rosenberg's treatment of him was such that he was justified in leaving his employ before the end of the stated term. Whatever the fact may be as to the treatment accorded defendant, upon Rosenberg's own testimony he was clearly at fault so far as that part of the contract is concerned which related to indemnifying defendant for the expenses incurred by him in connection with his business enterprise prior to October, 1908. The sum of one hundred and fifty-three dollars was to be paid in cash. It was not. It is true that it appears that by receiving a check dated November first defendant waived immediate payment and agreed to wait until the due day of the check. But when that day arrived Rosenberg failed to pay the same, and, with defendant's consent, the amount was divided into three parts, represented by three checks, one for fifty-three dollars and two for fifty dollars each, and dated November first, December first and January first respectively. The fifty-three-dollar check was paid in two installments. The other checks were not paid up to January 30, 1909, when defendant left Rosenberg's employ and started in business for himself, although one of them was then past due two months and the other a month. Rosenberg testified that defendant never asked for payment of these checks. This story is incredible and the strong weight of evidence is to the contrary. Rosenberg admitted on cross-examination that after giving these checks, and before the dates specified therein as the dates of payment, he closed his account with the State Bank upon which they were drawn, and he would not deny that they had been deposited for collection and returned unpaid. Therefore, when on January thirtieth defendant left Rosenberg's employ and started in business for himself, he was perfectly justified in doing so. It appears that just before the trial of this action in November, 1909, Rosenberg did pay these two checks. The conditions under which they were paid are not disclosed, but such payment does not in any way inure to the benefit of the plaintiff. The assignment to him of the claim in suit was made in February, 1909, and his right to recover in this action depends upon the rights of the parties as they then existed. At that time Rosenberg was clearly in default for failure to pay two of his checks for fifty dollars each. The claim which plaintiff purchased at that time and upon which this action is brought was worthless.
The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.
HIRSCHBERG, P.J., THOMAS, RICH and CARR, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.