Rosenfeld v. New

I am of opinion that there was evidence to go to the jury on all the disputed points, and that the submission of the whole issue to them was fair, and free from error. The court could not have charged as matter of law that plaintiff entered into an actual agreement that his traveling expenses should not exceed $50 per week. He admits that he said, before starting on his first business trip, that he could not travel on any such *233money, but that he would try to. Upon this trip he charged his traveling expenses at $60 per week, and they were allowed by defendant at that rate, without objection. Plaintiff admits that, upon subsequent trips, he submitted to a reduction of his salary of $100 in installments, because of his having charged $60, instead of $50, per week. But this he claims was without any final acquiescence in defendant’s authority to make such deduction, and therefore without releasing any existing legal rights; and he denies that he ever made any contract fixing his expenses at $50. He testifies that he actually expended $60 per week for traveling expenses during the period he was employed. The question whether or not such alleged $50 agreement existed was properly sent to the jury.

There is also evidence to support the verdict in plaintiff’s favor on the question of the alleged accord and satisfaction. Although he consented to receive, at the time of leaving defendant’s employ, the amount which appeared due by the defendant’s books, he refused to sign a receipt in full for the same, although requested to do so, and in fact gave no receipt at all. Certainly the court would not have been justified in directing a verdict for defendant on this point, and I think the trial judge correctly charged that the burden of proof to establish the alleged accord and satisfaction was on the defendant. The judgment appealed from should be affirmed, with costs. All concur.