Dibble v. Dimick
| Decision Date | 27 November 1894 |
| Citation | 143 N.Y. 549,38 N.E. 724 |
| Parties | DIBBLE v. DIMICK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from common pleas of New York city and county, general term.
Action by John W. Dibble against Jeremiah W. Dimick to recover for services rendered. From a judgment of the general term (23 N. Y. Supp. 680) affirming a judgment for plaintiff, defendant appeals. Affirmed.
E. W. Tyler, for appellant.
Ira G. Darrin, for respondent.
The plaintiff recovered in this case a balance which he claimed was due to him for compensation as a salesman in the employ of the defendant. The issue presented by the pleadings was one of fact, involving the terms and conditions of the original contract under which the service was performed. The complaint alleged that the plaintiff had performed services for the defendant as a salesman at his express request from November 15, 1889, to January 20, 1891, and that such services were of the value, and were rendered for the agreed compensation, of $4,100; that the plaintiff had been paid the sum of $2,430.41; and that the balance, with interest, was due and unpaid. The answer admitted that the services were rendered; that the payment referred to in the complaint had been made; and denied that there was any further sum due to the plaintiff, or that the sum stated in the complaint had been agreed upon by the parties as the compensation. The question to be tried, therefore, was the issue thus made in regard to the terms of the agreement. Both parties claimed that the plaintiff entered into the defendant's service under a verbal contract, but they differed widely as to its terms. The plaintiff claimed that he was to be paid upon the basis of commissions upon the sales at the rate of 2 per cent., with a guaranty of $1,500 per year salary. The defendant claimed that the commissions were not to exceed 1 per cent. on all sales made at wholesale, and 2 per cent. on those made at retail. The amount of the commissions was therefore the vital point upon which they differed, and each party supported his version as to the terms of the contract by his testimony. If the defendant's version was correct, the action was defended. If the plaintiff's was the true one, he was entitled to recover the amount awarded to him by the referee. The parties were in direct conflict as to the fact, and the burden of proof was upon the plaintiff. The defendant gave some proof in corroboration of his version of the agreement. It was shown and found by the referee that at various times after the 1st of November, 1890, the plaintiff had been paid commissions which he had himself computed upon the basis of 1 per cent. upon some of the sales and 2 per cent. upon others. The plaintiff attempted to explain this by testifying that the defendant refused to allow him the 2 per cent. on all the sales, and directed him to compute the commissions at the rate that he did, and that he took what he could get, and what the defendant told him to compute the compensation at. The plaintiff, however, remained in the defendant's employ until discharged; for what reason does not appear. The referee found the agreement to have been made as claimed by the plaintiff, and directed a judgment in his favor. The proof that the plaintiff figured commissions upon the basis claimed by the defendant, and received his compensation from time to time upon that basis, was competent as bearing upon the terms of the contract of employment; but it could not be used, when in the case, to establish a settlement, an accord and satisfaction, or payment in full, for the reason that these were affirmative defenses, and they were not pleaded. The referee's finding is supported by evidence, and, while we think the preponderance of proof was in favor of the defendant, still we have no power to disturb the judgment. The referee had the parties before him, and had a better opportunity than any appellate court can have to form a correct judgment as to the relative weight and credibility to be given to the conflicting statements of the parties.
The referee allowed the plaintiff commissions on goods ordered before, but not delivered until after, his discharge. There was no error in this ruling. The services were rendered when the plaintiff solicited and obtained the orders for the sale of the goods, though the commissions might not be due or payable until the goods were actually delivered; but it was not necessary that the delivery should be made during the plaintiff's employment. The discharge of the plaintiff could not affect...
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... ... Dibble v. Dimick, 143 N. Y. 552, 38 N ... E. 724. Under the general issue, or a general denial, the [82 P. 238] plaintiff has the burden of proving his claim; ... ...
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...any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved,’ " citing Dibble v. Dimick , 143 N.Y. 549, 554, 38 N.E. 724 [1894] ).Here, the condition of plaintiff's cervical spine tends to prove or disprove the existence of several facts materia......
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Flaherty v. Bookhultz
...after the termination of the agency.' See also Zinn v. Ex-Cell-O Corporation, 24 Cal.2d 290, 149 P.2d 177, 180; Dibble v. Dimick, 143 N.Y. 549, 38 N.E. 724, 725. In support of their contention that plaintiff forfeited his right to commissions on sales made but not completed during the time ......
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...after the termination of the agency.' See, also, Zinn v. Ex-Cell-O Corporation, 24 Cal.2d 290, 149 P.2d 177, 180; Dibble v. Dimick, 143 N.Y. 549, 38 N.E. 724, 725, cited in Flaherty v. Bookhultz, supra, 207 Or. at page 481, 297 P.2d at page In response to defendant's contention in the Flahe......