Finkelstein v. Iroquois Door Co.

McLaughlin, J.:

Action to recover commissions alleged to have been earned by the plaintiff in procuring a contract for the sale of certain building materials for the defendant. The complaint alleged, in substance, that in September, 1910, the defendant agreed with the plaintiff, if he would procure for defendant a contract, either in his own name or in the name of the defendant, to furnish the trim work for certain buildings in the course of construction, the defendant would pay a sum equal to the difference between $10,664.46, for which it was willing to fur.nish the materials, and the price specified in the contract of sale; that the plaintiff procured from the Gainsborough Building Company, the owner of said buildings, an agreement to purchase the materials specified for $13,500; and that the contract, while taken in the name of the plaintiff, was in fact taken for the defendant and assigned to it by the plaintiff — defendant agreeing to pay plaintiff the difference of $2,835.54.

The answer denied all of the material allegations of the complaint, and alleged by way of counterclaim that the transaction was a sale by defendant to the plaintiff, as a result of which plaintiff became indebted to it, over certain credits allowed plaintiff, in the sum of $1,918.16.

The reply put in issue the allegations of the counterclaim. The action was tried before a jury, which rendered a verdict in favor of the plaintiff for $3,518.54, and from the judgment entered thereon, and an order denying a motion for a new trial, defendant appeals.

I am of the opinion that the judgment should be affirmed. Plaintiff’s version of the transaction is supported by his own testimony and that of the witness Bookstaver, who, at the time of the transaction, was secretary of the Gainsborough Building Company. The plaintiff testified that he stated to one Salmon, the New York manager of the defendant, that he was in a position to procure a contract to furnish the trim work for seven large buildings in the course of construction in Brooklyn and that it was then agreed between plaintiff and defendant, represented by Salmon, that plaintiff should procure such contract and if he did so defendant would pay him the difference between $10,661 and the price at which the materials were to be furnished; that plaintiff subsequently procured an offer from the Gainsborough Building Company of $13,500 for the materials to be furnished and which offer was submitted to the defendant; and that defendant was unwilling to accept the offer of the building company unless it gave security for the payment of the purchase price of the materials. The plaintiff’s testimony as to the security was ■ corroborated by a letter written by the defendant to the plaintiff, in which it stated: “We would not care to sell the firm that you spoke of to us this morning except on a secure basis.” The building company subsequently gave security which was satisfactory to the defendant and a. contract was then executed for the sale of the materials. In terms, it provided for the sale of the materials in question by the plaintiff, as seller, to the Gainsborough Building Company, but both the plaintiff and Bookstaver testified that the contract was so drawn at the instance of the defendant and that Salmon stated that defendant as a manufacturer dealt largely with materialmen and did not wish it to appear to the trade that it was competing with them by selling directly to the builder.

The plaintiff further testified that on the day following the execution of the contract it was assigned to the defendant and thereafter it delivered materials of the aggregate value of $5,500 directly to the building company. The building company subsequently became financially embarrassed and the balance of the materials were not delivered. The plaintiff’s testimony is also corroborated by the fact that after the building company became financially embarrassed the defendant endeavored to collect its claim against the building company, and among other steps to that end took, by confession, a judgment for the amount due.

At the close of the case the court, in a charge to which no exception was taken, submitted to the jury the question as to whether the relation of plaintiff and defendant was that of buyer and seller, as contended by defendant, or of broker and principal, as contended by plaintiff. The jury found in favor of the" plaintiff, upon evidence which was, in my opinion, sufficient to sustain its verdict.

It follows the judgment and order appealed from should be affirmed.

Laughlin, Clarke and Scott, JJ., concurred; Ingraham, P. J., dissented.