Citation Numbers: 26 N.Y.S. 128, 73 Hun 138, 80 N.Y. Sup. Ct. 138, 56 N.Y. St. Rep. 875
Judges: Brien
Filed Date: 11/17/1893
Status: Precedential
Modified Date: 1/13/2023
The complaint herein alleges:
“That, in the year of 1885, Seth B. Robinson, the father of the plaintiff herein, was engaged in business as an importer in the city of New York, and that in said year, and with the knowledge and consent of defendants, said Robinson purchased for the account of defendants goods, wares, and mer*132 chandise of the price and value of about $22,800, exclusive of duties; that thereafter the said goods were delivered to and received by the said defendants; that thereafter, and on or about the 10th day of September, 1885, the said defendants employed the said Robinson to sell said goods for them, and promised and agreed to pay him for his services in selling the same the excess of the price at which he might sell the same over the costs of the goods so sold, 5% added thereto; that thereupon the said Robinson, pursuant to said employment, and in reliance upon the aforesaid promises and agreement, sold a large amount of the aforesaid goods, to wit, goods of the cost of about $18,000, for the price or sum of about $30,000; that thereafter, and on the 14th day of June, 1886, the said Robinson, being then a resident of the city of New York, died intestate, and thereafter the surrogate of the county of New York, having jurisdiction in the premises, duly issued letters of administration upon the goods, chattels, and effects of said Seth B. Robinson, deceased, appointing Caroline L. Robinson, his widow, administratrix, who thereupon duly qualified as such administratrix, and entered upon the discharge of the duties of her said office; that thereafter, and on or about the 13th day of April, 1889, the said Caroline L. Robinson, as administratrix, for value received, duly sold, assigned, and set over to this plaintiff all claim which the said Seth B. Robinson had in his lifetime against the defendants on account of, or by reason of, his said services and employment, as aforesaid; and also all claim which she, the said administratrix, had by reason thereof.”
The judgment asked is for the sum of $10,000, or the difference between the cost and the price for which such goods were sold.
In determining whether the conclusion reached by the referee was correct, the first question that naturally suggests itself is as to whether the cause of action, as alleged, was proved. The answer to this is to be found in the testimony produced, which, exclusive of extrinsic matter throwing light upon the situation of the parties, the character of their dealings, and the nature of the business in which both were engaged, may be briefly summarized. It appears that Mr. Robinson, Sr., was an importer of buttons; that the defendants were commission merchants; and that in 1885 the former was indebted to the latter in the sum of $18,902.84, which was secured by the deposit with defendants of certain goods. This indebtedness is called “the old indebtedness,” and these goods, “the old goods.” Robinson, Sr., imported goods from Europe through the defendants, as commission merchants, upon a credit or authority to buy given to him by them, or otherwise upon their guaranty given to houses abroad; and, as the result of such credit extended, Robinson, Sr., became indebted to defendants for the amount of the old indebtedness, for which he had given what are called the “old goods” as security. In the spring of 1885, while thus indebted to defendants, Eobinson, Sr., went to Europe with a credit or authority to buy to the extent of $20,000 given to him by defendants upon the firm of Anton Aub & Co., of Paris. Under this credit, and between July 2 and October 13, 1885, Robinson, Sr., purchased goods which were shipped to defendants; the invoice being made in their name, and the payments being by them made to Anton Aub & Co. According to the course of business between the parties, the defendants were to deliver the goods to Robinson after their arrival in New York city, and were to be paid for them by him, all expenses being included, together with 5 per cent, commission as the charge of the defendants for giving to Robinson the credit or authority to buy. About Sep
“It was only a short conversation. Mr. Robinson did not know what to do with the old goods he had on hand unless he got a new stock that came in, and he wanted to know of Mr. Sutton about it; and Mr. Sutton said he could not give them to him unless he gives him some security, and I think he suggested the name of Mr. Striker as security, and Mr. Robinson could not give that security. So Mr. Sutton said he could not deliver the goods. * * * I am talking of the new goods that were just arrived at the .time. Then it was concluded that Mr. Sutton was to sell the goods that were coming in from his store under the heading of the firm of Passavant & Co. * * * Under their billheads, in the store of Passavant & Co.,—goods that he stored with them. * * * Mr. Robinson thought at the time that it would not take more than a month, or two or three months at the furthest, until he could pay up Mr. Sutton every cent he owed. All the indebtedness would be cleared off. and he would get then whatever was remaining,—the difference, either in cash or goods, back to his store,—and that was the whole agreement at that time.”
And in another place this same witness testifies:
“Robinson was to have the whole thing. Passavant & Co.’s indebtedness would have been paid. That was all there was about it. They wanted to get themselves settled up for the old and the new goods, and clear.”
It is upon the testimony of this witness that plaintiff’s claim is predicated,—that Robinson, Sr., was to be employed by defendants to sell the new goods, and entitled to all the profits remaining after payment of costs, and 5 per cent, commission added; and an effort was made, upon the claim of such an. agreement, to show that, while that was the situation of the parties, the release in question was given, which was intended to discharge the old indebtedness in consideration of the retention by defendants of the old goods; thus giving Robinson a claim by way of compensation against defendants for anything that might be realized upon the sale of the new goods over and above what they were to receive under such alleged agreement. The testimony fails to show whether the release was prior or subsequent to this conversation detailed by the witness Ross, yet the necessity for such proof—the burden of showing which was upon plaintiff—clearly appears, when we consider that, if it had