Lewis v. Tindel-Morris Co. , 96 N.Y.S. 576 ( 1905 )

Ingraham, J.:

The attachment in this action was granted on the 14th day of December, 1903, upon a verified complaint and an affidavit of the plaintiff. The motion to vacate was made upon the papers upon which the attachment was granted, and the attachment appears to have been vacated upon the ground that the affidavit fails to show what amount, if any, the plaintiff was entitled to recover. The attachment was for the sum of $6,795, and, it is alleged and'not denied that the defendant is a foreign corporation. The action is to recover the amount due the plaintiff under a contract by which the defendant agreed to pay to. the plaintiff, as compensation for his services rendered, “ an amount equal to the difference between the price at which this plaintiff should sell such goods, wares and merchandise and a stated price therefor to be fixed by the defendant, and, in addition to such difference, a sum equal to five per cent of the price so fixed.” The complaint alleges that the plaintiff, between January 17,1903, and March 14,1903, in pursuance of said request and employment, sold to certain purchasers obtained and •procured by him certain of said goods, wares and merchandise for and on behalf of the defendant, which sales the defendant thereupon accepted; and on- information and belief alleges “ that the stated price fixed, by defendant in the manner aforesaid upon said goods, wares and merchandise so sold as aforesaid was $67,550, and the price at which, this plaintiff sold- the same to said, purchasers was $70,967.50, and the difference between the said prices is $3,417.50, which, together with 5 per cent of the price so fixed by this defendant, being $3/777.50, amounting in all to the sum of $6,795.00, is the amount now due and owing from this defendant to this plaintiff as such compensation?’

This statement in the .complaint is upon information and belief. The affidavit of the plaintiff, upon which the attachment was granted, sets forth the source of the information of the plaintiff upon which lie-made the allegations of the. complaint. The contract between the plaintiff and the defendant is set forth in the affidavit and the plaintiff alleges that in pursuance of the contract he sold goods, wares and merchandise consisting of forgings on behalf of the defendant, which sales the defendant accepted, and agreed to fill such orders and to deliver the said goods so sold; that the goods, wares and merchandise referred to were manufactured by the defendant in the State of Pennsylvania; that said forgings, by the terms of the contract, were to be sold at a price per pound of their weight as. and when completed; that during the period of the performance of this contract the plaintiff had in his employ as a clerk one McDowell, who had charge of the correspondence, orders and bills relating to the business of the plaintiff, in connection with the contract with the defendant; that said McDowell was the only person in the office of the plaintiff, except deponent, who had charge of such orders, and that the plaintiff was not familiar with and did not keep track of all the details with reference thereto; that on March 17, 1903, McDowell left the employ of the plaintiff and entered the employ of the defendant, and continued to carry on the sale of forgings for the defendant, as its agent, in the city of Hew York, in violation of said contract; that when McDowell left the employ of the plaintiff he removed the records, orders and correspondence with reference to said business and did not return the same or any part thereof; that the plaintiff demanded of McDowell a statement of his account with the defendant and that McDowell made a statement, a copy of which is annexed to the affidavit. The plaintiff then alleges that in and by said statement it appears that the earnings of the plaintiff under the aforesaid agreement and agency, being the amount due from the defendant to the plaintiff down to the date of the last item calculated by said McDowell, was the sum of $6,696.65, and that the amount which would become due to the plaintiff under the additional orders which were given, by the plaintiff and refused is $98.35, making an aggregate amount of $6,79.5, which is the amount now due and owing to the plaintiff and the amount for which the attachment was granted.' The statement annexed to the affidavit as the statement made by McDowell, then actually in the employ of the defendant, as to the amount to which the plaintiff was. entitled, names various parties to whom the goods were sold, the actual commission under the contract Of five per cent,, the excess over the price fixed by the defendant, and the price for which the goods were sold. From that statement it would appear that the amount due to the plaintiff Was $6,696.65, and that with the additional amount that; would have been due to the plaintiff under orders subsequently refused by the defendant of $98.35, would -make $6,795. The plaintiff, therefore, .presented to the court proof that there was due to the plaintiff from the defendant this sum of $6,795. . .

. It is true that the allegations as to, the amount were based upon information and belief; but the source Of the information and the ground of the belief Were furnished in the affidavit, arid it appeared that the information was that furnished by á former clerk of the plaintiff who had knowledge of the’details of the business and who had left the plaintiff’s employ and gone- into the employ of the defendant, taking with, him the books, papers and correspondence of the plaintiff from,which the details could be ascertained. The relation of McDowell, who had supplied the information to the defends ant, excused the plaintiff’s not obtaining from McDowell an affidavit of these facts, and the plaintiff, in his affidavit, from his knowledge of the business as conducted by the defendant,' verifies his, belief of the correctness of the statement furnished by' McDowell. It is true that the affidavit does riot state the details of the transaction which would probably be required upon the trial to substantiate the plaintiff’s cause of actiori,; but I think, considering the. circumstances, the. employment by the defendant of the plaintiff’s employee who had knowledge of the details, of the plaintiff’s business immediately after breaking the contract with the 'plaintiff, and then proof that the plaintiff’s;.agerit, who 'had become'-the agent of the defendant, made a statement to the plaintiff as to the amount due to the defendant from persons to whom the goods weresold, was sufficient to justify the allegation in the complaint as to the price fixed by defendant of the forgings sold by the plaintiff and the price at which the plaintiff sold them to the purchasers, and from this the amount due to plaintiff was computed.

The cases cited by the respondent, and many others, where 'we have felt constrained to se.t aside attachments upon the ground that material facts were stated upon information' and belief, without any statement of the source of the information or the ground of the belief, so that the court could judge whether or not the affiant was justified in making the statement and believing it to be true, do not apply to this case, for here the source of the information is stated, and we think, considering the circumstances, that the plaintiff was justified in making the allegation upon information and belief,, and justified in believing the statement to be true.

The criticism of the court below that the number of pounds of castings sold to these various purchasers by the plaintiff and the exact price fixed by the defendant for the goods sold is not stated in the affidavit, did not require the court to vacate the attachment. The amount due the plaintiff under this contract for sales made by him, it is true, depended upon the price that the defendant fixed for its goods and the number of pounds of castings sold; and those details are not stated "either in the affidavit or the statement furnished by McDowell. The written statement of McDowell to the plaintiff, which is annexed to the plaintiff’s affidavit, is based, however, upon a computation which dépends upon a correct statement of these amounts. ' From the facts' stated, there can be no question but that McDowell, had knowledge of these details. His relations with the plaintiff when the orders Were given and accepted by the defendant and his subsequent relation to the defendant would give him such knowledge, and thus, the statement: of the amount of commission and the excess upon each sale made, under such circumstances, justifies the conclusion that McDowell who .knew the facts corréctly stated the amount of the commission and excess, and' is, I think, a sufficient allegation that this amount was due to .the plaintiff to justify the court in granting the attachment. '

I. think, therefore, that the court was justified in,, granting this attachment,.and that the order appealed from should..he, reversed, with ten dollars costs and disbursements, and the motion to vacate the attachment denied, with ten dollars costs.

O’Brien, P. J., Clarke and Houghton, JJ., concurred; Patterson,. J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with tefi dollars costs. '’