Dean v. Woodward , 59 N.Y. Sup. Ct. 421 ( 1889 )

Learned, P. J.

About September 1, 1883, the plaintiff agreed to sell cotton for defendants as a broker. His compensation was to be 50 cents per bale for all sales he should make, and 25 cents for all trade that he introduced where manufacturers should send orders direct to defendants. It does not appear that his employment was for any specified time, nor is it expressly stated for how long a time he was to have the benefit of the 25 cents per bale for trade introduced by him. But he says that he settled “for that year” on that agreement, and he does not seem to claim that on that agreement solely his right to the 25 cents per bale lasted beyond the year. On August 22, 1884, the defendants wrote plaintiff a letter in which the terms of brokerage to be done by plaintiff are stated in substantially the way above set forth. The plaintiff states that on these terms he sold for defendants during what he calls the “cotton year of 1884 and of 1885,” and that he settled on these terms for the sales of that year. He alleges in his complaint that about September 1, 1886, he and they renewed the agreement for another year, and that he entered upon its performance. On January 15, 1887, defendants wrote him that they must end their arrangement, and that thereafter they would allow him brokerage only on such sales as he should make for them. In April, July, and August, 1887, defendants sold to certain customers cotton amounting to 1,140 bales. Oh these sales the plaintiff claims 25 cents per bale; and the referee has allowed this claim on the ground that sales had been previously made to those customers through the efforts of plaintiff. These customers were the Shenandoah Mill, Warner, De Forest & Co., the Mount Ida Company, the Vermont Mill, and Robert Amblett. If we look at plaintiff’s own testimony, we shall find that of these customers he made direct sales after August 1, 1886, and before January 15, 1887, to the Vermont Mills and the Mount Ida Company. He does not remember any others, and he does not claim to have sold to any others of these customers between August 1, 1886, and January 15, 1887. The referee, therefore, in respect to the others of these customers must have allowed the plaintiff to recover on the ground that in years prior to August 1, 1886, the plaintiff had sold to them.

The basis of plaintiff’s claim is that his employment in each instance was for the year for what he calls the “cotton year;” and he states that he settled with defendants on the terms aforesaid for the services of the respective years. The referee finds that about September 1, 1886, the contract was renewed for the year. How, there is nothing express in the contract showing for how long a time the plaintiff was to continue to receive 25 cents per bale for cotton sold by defendants directly to customers. It is hardly possible that the agreement made, for instance, in September, 1883, was that for all time to come the defendants should pay the plaintiff 25 cents on every bale which they should sell to a customer introduced by him. This would be, as said in their letter, a royalty for all time. And the plaintiff places no such construction on the agreement; otherwise he could not have settled, at or about the end of the respective years, for his services. The plaintiff then must have claimed that for any sales made by defendants directly, during the year for which he was employed by them, to persons whom he had during that year obtained as customers, he should have his 25 cents per bale. When, then, about the 1st of September, 1886, plaintiff applied for employment again, he had, as he says, settled for the sales of the year then past. The contract then made was a new agreement, and the plaintiff’s rights depend on that new agreement. The plaintiff’s claim is that under that agreement then made he is entitled to more compensation than he has received for the work which lie has done. He does not seek to recover for work which he might have done if he had not been discharged; but his claim is that for the work which he did he is entitled to further compensation,—that is to say, for the 25 cents a bale for sales made directly by the defendants to customers whom he had procured. Plainly, this claim must be limited to those customers whom he had procured during that year, because the agreement was, as he says, renewed about September 1, 1886. The renewal did not imply that he was to be further compensated for customers whom he had previously obtained. It implied only that for work done after September 1, 1886, he should be compensated on the old terms, viz., 50 cents per bale for sales made through him; 25 cents for sales made directly to customers whom he should procure; not to those whom he had previously procured. If'the latter construction were ■correct, he would be entitled to the 25 cents even though there had been no renewal of the agreement about September 1, 1886. In this view he can remover only on" the bales sold to the Vermont Mill and the Mount Ida Companv, —200 in all.

Judgment reversed, new trial granted, referee discharged, with costs in this court to the defendants, unless the plaintiff shall elect within 20 days after service of copy of this order to reduce his recovery to $50 and interest from the commencement of this action, and the costs below, in which case the judgment so reduced is affirmed, without costs in this court.

Landon, J., concurs.