On August 31, 1917, Louis Schwartzreich (plaintiff) entered into an employment agreement with Bauman-Basch, Inc. (Bauman-Basch) (defendant), signed on behalf of Bauman-Basch by one of its officers, S. Bauman. The employment term was one year, starting November 22, 1917, at a salary of $90 per week. In October 1917, Schwartzreich received an offer for a higher salary from another company. After discussing the offer with Bauman, he agreed to stay with Bauman-Basch at an increased salary of $100 per week. On October 17, 1917, the parties signed a second employment contract, identical to the first but for the change in salary. Simultaneous to the execution of the new agreement, Schwartzreich tore off the signatures from his copy of the August contract and either gave or left the contract with Bauman. According to Schwartzreich, Bauman said the August contract was no longer needed because the October contract took its place. In December, Schwartzreich was terminated by Bauman-Basch. He sued for breach of contract, seeking damages based on the October agreement. The trial judge charged the jury with determining whether the August contract was cancelled by the parties’ mutual consent “prior to or at the time of the execution” of the October agreement, in which case damages were to be based on Schwartzreich’s $100-per-week salary. Counsel for Bauman-Basch objected to the instruction that the August contract could have been cancelled at the same time that the October agreement was made. The jury found that the August contract was cancelled and issued a verdict in favor of Schwartzreich. The trial judge then set aside that verdict, citing insufficient evidence to find a cancellation of the August contract. On appeal, the Appellate Term reversed the trial court’s ruling and reinstated the jury verdict and judgment. Bauman-Basch appealed.