Sawyer v. Deicken , 107 N.Y.S. 560 ( 1907 )

Bruce, J.

This is an action for commissions on the sale of merchandise. The defendants were the selling agents of the manufacturer. They made an agreement with the firm, of which the plaintiff was a member, and to whose rights he had succeeded, for the exclusive sale of these goods, within a limited territory. The agreement was verbal, and nothing was stated as to when the commissions were payable. Plaintiff’s firm secured a number of orders, which were accepted by the defendants, hut the goods were never delivered, on account of the failure of the manufacturers. The defendants, upon the trial, offered evidence to prove that there was a uniform, well settled custom or usage among commission houses in this city, that being the location of the houses of both parties herein, when commissions for the sale of goods of this character are payable. This evidence was excluded, to which the defendants duly excepted. The exclusion of this evidence was highly prejudicial to the defendants and constitutes reversible error. The contention of the defendants throughout the trial was that the commissions w"ere not payable under the contract, until the goods were charged as delivered to the customer; and that this was in accordance with the uniform usage in the trade in this market in the sale of such goods, and that the parties, all of whom were old commissionmen, by leaving their agreement silent on this subject, must be deemed to have contracted with reference to the well established custom. I think that this evidence should have been admitted, and that it was for the jury to determine whether or not such a custom existed and, if it did, whether or not the parties contracted with reference thereto. Underwood v. Greenwich Ins. Co., 161 N. Y. 413-423; Horst v. Lovdal, 113 App. Div. 217. The casesurelied upon by the respondent are not applicable to the facts here. They refer to the well established law with reference to the payment of commissions on the sale of real property, and are not controlling in commercial transactions in the .sale of merchandise. •

Gildersleeve and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.