Costet v. Jeantet (108 A.D. 201, 1905)

Patterson, J.:

This action was originally begun against Eugenie R. Jeantet and Emile E. Jeantet, as copartners. Mrs. Jeantet died and her' executors were substituted in her place as defendants. The plaintiff in his complaint alleged that Eugenie R. J eantet and her son Emile E. Jeantet were copartners; that on or about the 31st of August, 1900, he entered into an agreement in writing by which they agreed to employ him at a weekly salary of twenty-five dollars, and in addition thereto fifteen per cent of yearly profits realized on business conducted by Mrs. Jeantet and her son under the firm name of “E. Jeantet;” that the plaintiff was to act as traveling salesman for the defendants and also to assist them in their business at the store when not traveling for them ; that the agreement was to go into effect on t-lie 1st day of January, 1901, and to terminate on the 31st day of December, 1902; that the plaintiff entered upon the performance of his contract and remained in the employ of the defendants until the 4th of May, 1901, when he was illegally discharged and the defendants refused to allow him to perform further services under the agreement; that he' duly tendered his services but was notified that they were no longer required, wherefore he demanded judgment for a certain sum of money and for an accounting of the profits. ' Eugenie E. Jeantet, by her separate answer, admitted the employment, but she- did not admit the partnership. As a separate defense she alleged that she was induced to sign the contract with the plaintiff through false and fraudulent representations. • It is sufficient to say, with reference to this defense, that the proof does not sustain it. For a further, separate and distinct defense, she alleged that between the 1st of January, 1901, and May 4, 1901, the plaintiff continually neglected and refused, with-. out any just cause or reason, to fulfill and comply with the terms and conditions of the contract referred to in the complaint and refused and neglected to render the services required of him there-' under. For a further defense, she alleged that during the period indicated, while the plaintiff claims to have rendered services, he was continually disrespectful to her, and refused to obey her Orders and was insolent and impertinent and used abusive language, and repeatedly threatened to assault defendant’s sons, who were employed by her. Emile E. Jeantet in his answer denies the alie-, gations of the complaint and asserts that he did not sign, the contract as a contracting party, but only as a subscribing witness; that he had no interest in the firm and no authority to ‘employ or discharge the plaintiff. The defendant Edward E. Jeantet answered setting up substantially the. same matters as those contained in the answer of his mother. On the death of Mrs. Jeantet the action was reconstructed as above stated and a supplemental complaint was filed- .

On the trial a contract in writing was introduced in evidence, and it appears thereby that it was made between Mrs. E. E. Jeantet and Mr. E. E. Jeantet of the firm of E. Jeantet; and that “Mrs. and Mr. Jeantet agree to' pay to Mr. Oostet a weekly salary of twenty-five dollars, and fifteen per cent on the net profits at the end of each year.” Mr. Oostet being engaged as traveling salesman, all Ms expenses when traveling to be paid by the firm of E. Jeantet. “ When not traveling, Mr. Oostet agrees to report at the store and assist in the work about the same. This present agreement is to be in effect on the first day of January, nineteen hundred and one, and to end on the thirty-first day of December, nineteen hundred and two.” There is then added to the agreement the following : “ Notice of desire to terminate contract by either party shall be given in writing two months previons to said termination (i.