The Boston Carpet Co. v. . Journeay , 2 Trans. App. 250 ( 1867 )

Scrugham, J.

On the argument before us the Defendants did not insist that the referee erred in allowing the Plaintiffs to recover the amount which had been retained by the Defendants on account of the alleged deficiency in the measurements of the carpets consigned to them, but only contended that there was error in his decision that the Plaintiffs were entitled to recover the difference between the amount of the sales as returned and their amount as actually made.

The effect of the agreement for the consignment and sale of the carpets was to entitle the Defendants to commissions of six per cent, upon all sales to such purchasers as, in the agreement, are denominated customers of the first class, and, upon sales to such as are therein denominated customers of the second class, to the same commission, and no more, unless the prices obtained from such customers should exceed those obtained from those of the first class, in which ease the Defendants were to be entitled to the excess, as additional commissions. On sales to customers of the first class, the Defendants were to account to the Plaintiffs for the whole price obtained, and were entitled to retain only their commissions and customary charges; and as the referee found as a fact that all the sales were made to purchasers of this class, the judgment cannot be disturbed, if there was any evidence to sustain this conclusion. The agreement provided that it should be left to the Defendants to determine who were the first, and who the second-class customers; and it is evident that it was the intention of the parties that this determination should be made known to the Plaintiffs as the sales were made, or in the schedules of sales required by the agreement to be furnished to them; for the amounts at which the Defendants were to account for sales to customers of the second class were to be determined by the prices they obtained from those of the first class, and the correctness of the accounts could not be ascertained until such sales were declared. It was clearly the duty of the Defendants, as factors, to render to their principals true accounts of the prices obtained for their goods, whether sold to first or to second-class customers. The fact that by the agreement they became entitled, on sales to those of the second class, to any excess over prices obtained from first-class customers for similar goods, did not relieve them from declaring the prices at which the goods were so sold; for that excess was given to them as an additional commission, and should have been charged in the account as such. Such was the only correct method of stating the account as to sales to second-class customers; and as the account rendered contained no charge for additional commissions, but only claimed the percentage chargeable on sales to first-class purchasers, it appeared upon its face to be an account of sales to first-class customers only, and its rendition could properly be regarded as the declaration of the Defendants that all of the sales mentioned in it were made to customers of the first class. It is not necessary to refer to other circumstances which might be adduced to sustain the referee’s decision that the sales were all to first-class customers, for, as enough has been stated to show that it was not entirely unsupported by evidence, it cannot be regarded as erroneous in law.

The judgment should be afiirmed.

All concur.

Affirmed.

JOEL TIFF ANY, State Reporter.