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ant's terms. This he did not do. The fact that other reasons may have actuated the defendant in rejecting the loan is immaterial, provided the plaintiff did not obtain the defendant's consent to the conditions specified in the acceptance.

The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

MOSKOWITZ V. MAWHINNEY.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) MASTER AND SERVANT (8 9*)-EMPLOYMENT CONTRACT-PRESUMPTION OF RE

NEWAL

Where a salesman's contract of employment was for six months only, with the privilege of renewal for six months more, which privilege was exercised, the fact that he continued in his employment after the expiration of the second six-months period did not create a presumption that the parties agreed to a renewal of the contract for a third sixmonths period.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. 8 11; Dec. Dig. $ 9.*] Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by David Moskowitz against George S. Mawhinney. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Thomas G. Prioleau, of New York City, for appellant.
Bennett E. Siegelstein, of New York City, for respondent.

GUY, J. This action was brought by plaintiff to recover damages for the breach of a contract of employment. The contract upon which plaintiff brings his action was for the employment of plaintiff as a salesman for six months from May 9, 1910, with a privilege of renewal for a further period of six months, which privilege was exercised. Plaintiff received no notice in May, 1911, the date of the expiration of the second six-months period, as to whether or not defendant intended to renew the contract. He continued to work for defendant, however, until his discharge on July 25, 1911, and he claims he was entitled to salary for the balance of a third six-months period.

Where a contract of hiring or employment is for a less term than a year, there is no presumption that the parties agreed to its renewal for the same period by reason of the continuance of the employment or holding over for a short time after the term ended. Caldwell v. Caldwell Co., 88 N. Y. Supp. 970; Barnes v. Summit Silk Mfg. Co., 113 N. Y. Supp. 977, 979. There was no proof of any agreement for any new hiring for any specific term.

Judgment reversed, with costs, and complaint dismissed, with costs.

All concur.

*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

LEVITT et al. V. SLIMAN.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) FRAUDS, STATUTE OF (8 115*)—UNSIGNED ORDER FOR GOODS.

Under the statute of frauds, an order for goods, which was taken by the seller's agent, but not signed by the buyer, was not binding upon the buyer.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. $$ 242250; Dec. Dig. $ 115.*] Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Charles H. Levitt and another against Thomas Sliman. From a judgment for plaintiffs, defendant appeals. Reversed and dismissed.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Horwitz & Wiener, of New York City (Edwin Horwitz, of New York City, of counsel), for appellant.

George Ryall, of New York City, for respondents.

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PER CURIAM. The action is for goods sold and delivered; the defense, the statute of frauds.

One of the plaintiffs testified that he wrote the defendant's order
for goods on a printed slip and gave the defendant a duplicate. The
order, which was not signed by the defendant, but by one of the
plaintiffs, was in its material parts as follows:
Chas. H. Levitt & Co., Landco Knitting Mills.

[Trade Mark)
Shawls, Fascinators, Sweaters, Gloves, Fancy Knit Goods, etc.,

321 Church Street, New York. No.

19 Entered

When to ship 630 Terms

How to ship

Salesman G 3
Sold to Thomas Sliman
At

Albany, Ga.
Lot
Doz.

Not subject to countermand. Then follows a list of numbers, number of dozens of each kind of goods, and the aggregate price of each lot.

At the close of the evidence, defendant moved to dismiss. The court denied the motion. Defendant excepted.

The statute of frauds requires every contract within its terms to be signed by the party to be charged, or his agent in that behalf. Neither party can be the other's agent to bind him by signing the memorandum. Wilson v. Lewiston Mill Co., 150 N. Y. 315, 324, 326, 44 N. E. 959, 55 Am. St. Rep. 680; chapter 571, § 85, Laws 1911.

Judgment reversed, with costs, and complaint dismissed, with costs. For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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(Supreme Court, Appellate Term, First Department. November 8, 1912.) 1. ATTORNEY AND CLIENT (8 166*)—TRIAL (8 141*)-ACTION FOR SERVICES,

EVIDENCE-SUFFICIENCY.

Though the question of what were reasonable fees was one for the Jury, there being only expert testimony thereon, notwithstanding plaintiff's evidence was undisputed, yet a verdict for defendant was not merely against the weight of evidence, but was unsupported by any evidence; the evidence of employment by defendant of attorneys to render services for her for reasonable fees, and of their rendition of the services, being undisputed.

(Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. 88

368-372; Dec. Dig. § 166 ;* Trial, Cent. Dig. $ 336; Dec. Dig. & 141.*) 2. PAYMENT (8 638)— NECESSITY OF PLEADING DEFENSE.

The defense of payment being required to be pleaded, admission of evidence of payment under an answer which is a mere general denial is error.

[Ed. Note.--For other cases, see Payment, Cent. Dig. 8$ 152–161; Dec. Dig. $ 63.*] Appeal from City Court of New York, Trial Term.

Action by Charles Stumpf against Nettie Cohen. From a judgment on a verdict for defendant, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Scott, Upson & Newcomb, of New York City (Wm. Forse Scott, of New York City, of counsel), for appellant.

Strouse & Strauss, of New York City, for respondent.

GUY, J. Plaintiff appeals from a judgment in favor of defendant, entered herein upon the verdict of a jury, and from an order denying plaintiff's motion for a new trial.

[1] Plaintiff sues upon two claims assigned to him—one the claim of a firm of attorneys in the state of Virginia for services rendered defendant, and the other a claim for disbursements alleged to have been made on behalf of defendant by her New York attorneys. It appears that the New York attorneys were originally employed by defendant to take the necessary steps for the bringing of an action in equity in the state of Virginia, and that defendant authorized them to employ Virginia attorneys on her behalf, promising to pay the fees of such Virginia attorneys; that, pursuant to such authorization, her New York attorneys did employ a Virginia firm, who brought an action in Virginia, and the evidence was entirely uncontradicted as to the rendition of services by them and the value thereof, as established by expert evidence. It appears, further, that, subsequent to the employment of the firm of attorneys in Virginia by defendant's authorized agents, she made a new agreement with her New York attorneys, whereby it was agreed that they should be paid for their services one-half of the amount which might be recovered in the action *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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brought in Virginia, and the agreement, which was introduced in evidence by the defendant, contained this additional provision :

"I also agree to pay you promptly the amount of your disbursements in such suits and proceedings; it being understood that any sums paid by me with your approval for fees of other attorneys or counsel, in Virginia or elsewhere, shall be charged against or deducted from your said compensation."

Plaintiff introduced in evidence, also, a letter written by defendant to the Virginia attorneys, after their employment by her New York attorneys, ratifying their employment, and promising to pay their reasonable fees and disbursements. No evidence was introduced by the defendant in contradiction of plaintiff's evidence as to the claim for fees due the Virginia attorneys, and plaintiff was therefore entitled to recover on this claim. Though the evidence as to value was undisputed, it being expert evidence only, the value of said fees was properly left to the jury; but their verdict in favor of the defendant on this claim was not merely against the weight of evidence, but was unsupported by any evidence.

[2] As to the second claim assigned to plaintiff, the claim for disbursements made by the New York attorneys, evidence was erroneously admitted, over the objection and exception of plaintiff's counsel, which it was claimed established payment of the disbursements in question. The answer was a general denial. Payment was not pleaded. No attempt was made to amend the pleadings during the trial. It is elementary that the defense of payment must be pleaded (McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696), and the admission of this evidence was reversible error. The evidence introduced, however, failed utterly to establish payment of the items set forth in the claim of defendant's New York attorneys, but merely showed payments aggregating in amount less than the aggregate credits given defendant on the bill rendered her for disbursements by her New York attorneys.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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(78 Misc. Rep. 152.)

CAFFE V. NEWARK AUTOMOBILE MFG. CO. (Supreme Court, Appellate Term, First Department. November 8, 1912.) PBINCIPAL AND AGENT (8 81*)-COMPENSATION-BREACH OF CONTRACT BY

PRINCIPAL-ACTS CONSTITUTING BREACH.

In an agreement whereby plaintiff was to have the exclusive right to sell a certain amount of the stock of the defendant corporation for a fixed commission, a provision that "a signed subscription and 25 per cent, in cash was to constitute a sale" was only intended to limit the terms upon which plaintiff might sell, and not to enable the corporation to sell its stock upon different or less stringent terms; so that its sale of stock in exchange for merchandise and patent rights during the term of the agreement was a breach thereof, entitling plaintiff to dam. ages equal to the commissions he would have earned on such sales.

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(Ed. Note.--For other cases, see Principal and Agent, Cent. Dig. $8

191-214, 219, 223; Dec. Dig. § 81.*] •For other cases see same topic & S NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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Appeal from City Court of New York, Trial Term.

Action by Michel P. Caffe against the Newark Automobile Manufacturing Company. From a judgment of the City Court of the City of New York, entered by direction of the court in favor of the defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Ferguson & Ferguson, of New York City (L. C. Ferguson, of New York City, of counsel), for appellant.

Louis Fridiger, of New York City, for respondent.

SEABURY, J. This action is brought to recover the sum of $5,000 arising out of a breach of an agreement between the plaintiff's assignor and the defendant. Under the agreement sued upon the plaintiff's assignor had the exclusive right to sell $160,000 worth of stock of the defendant corporation, and was to receive therefor a commission of 15 per cent. on all sales of said stock. The agreement provided that, in so far as the plaintiff's assignor was concerned, “a signed subscription and 25 per cent. in cash was to constitute a sale." The plaintiff proved that, before the exclusive right of his assignor to sell stock had expired, the defendant sold over $6,200 worth of stock to various persons in exchange for merchandise and patent rights. The learned court below directed a verdict for the defendant, upon the ground that the plaintiff could not recover commissions for sales made by defendant, because those sales were not made upon the terms upon which, under the agreement, the plaintiff's assignor was. limited to selling

We think that this ruling was incorrect. The contract gave the plaintiff's assignor the exclusive right to sell stock. This right was inconsistent with any right on the part of the defendant to sell stock. The provision in the contract that a signed subscription and 25 per cent. payment in cash should constitute a sale was intended to limit the terms upon which the plaintiff's assignor was authorized to sell the stock. It was not intended to mean that the defendant could sell stocks, provided it sold them upon different or less stringent terms than those upon which the plaintiff's assignor was required to sell. Such a construction of the contract would render the exclusive privilege to the plaintiff's assignor valueless. As we construe the contract, its meaning is that the plaintiff had the exclusive right to sell $160,000 worth of stock, and that he was only authorized to sell upon obtaining a subscription and 25 per cent. cash, and that, while this exclusive privilege was outstanding, the defendant had no right to sell stock, and, if it did sell, the plaintiff was entitled to recover damages equaling the commissions that he would have earned upon such sales, even though the defendant sold upon terms different from those upon which the plaintiff's assignor was limited to selling.

It follows that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur,

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