Slater v. Detroit Graphite Co.

Action for salary for April, 1924.

Because of discouragement brought on by illness and business reasons, plaintiff had two conferences with one of defendant’s officers about his resignation, and finally wrote a formal resignation dated March thirty-first to take effect May first. This was answered by a friendly letter which accepted the resignation and said: “We will not call on you to return to the office or to represent this company from now on.” The result of these letters was that plaintiff was to have had his salary paid for the month of April but was relieved from active duty. On the second and seventh of April the uncontradicted testimony is that plaintiff was seen in the offices of two different customers of defendant accompanied by a chemist employed by defendant’s principal competitor and *184with whom plaintiff has since formed a partnership. Plaintiff frankly admits that these calls were for the purpose of securing introductions to these concerns in the hope that he could serve them after the first of May as the New York representative of the competitor. When these facts were brought to defendant’s attention a letter was written which amounts to a revocation of the prior letter and “ accepts plaintiff’s resignation ” as of March thirty-first.

The conduct of plaintiff was a breach of loyalty (Marshall v. Sackett & Wilhelms Co., 181 App. Div. 157) due the defendant, and the judgment must be reversed, with thirty dollars costs and complaint dismissed on the merits, with costs.

All concur; present, Bijur, McGoldrick and Levy, JJ.