Opinion
May 27, 1936.
Appeal from Supreme Court of Erie County.
David L. Landy, for the respondent, for the motion.
Milton E. Kaeselau, for the appellant, opposed.
Present — SEARS, P.J., TAYLOR, EDGCOMB, CROSBY and LEWIS, JJ.
In its decision this court did not in its opinion pass upon the judgment recovered on the second cause of action (third in the complaint) further than to approve the theory upon which it was recovered, and left that cause to be retried together with the first cause, as to which judgment was reversed because it was against the weight of the evidence. Our attention being called to the matter, we now express our determination that the judgment recovered on the second cause of action was also against the weight of the evidence, although still holding that upon proper proof showing a right of recovery the plaintiff may recover what his services were worth. Plaintiff contented himself with proving that he was not consulted in reference to the contract with the Pure Oil Company and that he performed the services connected with its advertising program, and he made proof of the value of his services. But he did not by sufficient evidence meet the testimony of defendant's witnesses Avery and Lounsberry to the effect that he was told, before he performed the services, that he was to receive nothing for them in addition to his weekly salary and that he performed without protest, and accepted his salary of $100 a week for several weeks without protest, and received checks for his salary having on them statements that they were in full for his services, and used the checks after changing the wording of the statements thereon without consulting defendant. There should be a new trial as to both causes of action.
Motion for reargument denied, with ten dollars costs.