McClaskey v. Cumberland Glass Manufacturing Co.

Headnote

Contract — action to recover commissions for merchandise sold under contract for services — defense that plaintiff had negotiated, sales to competitor.

McClashey v. Cumberland Glass Manfg. Co., 193 App. Div. 856 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 30, 1920, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was on contract, whereby it was alleged plaintiff was to obtain a commission of three per cent on the purchase price of merchandise sold by the plaintiff and shipped by the defendant; that the plaintiff worked for the defendant under said agreement until October 1,1916; that on or about September 1,1916, the agreement was modified by providing that the plaintiff was to pay his own expenses and a proportionate share of the expenses of conducting defendant’s New York office; that the plaintiff worked under this agreement for the defendant until November 9, 1916, at which time he notified the defendant that he desired to resign and that he intended to enter the employ of the North Wheeling Glass Bottle Company; that at the request of the defendant he continued in defendant’s employ for the balance of said month or until the 30th of November, 1916; that plaintiff sold merchandise amounting to $260,000 prior to the 30th day of November, 1916; that prior to this date, $180,000 thereof had been shipped, for which the plaintiff had been duly paid; that subsequent

to the 30th day of November, 1916, the plaintiff shipped the balance of said merchandise, amounting to $80,000, upon which the plaintiff was entitled to commissions at the rate of three per cent, amounting to $2,400, but that the defendant repudiated said agreement and refused to pay said sum or any part thereof. The answer, in addition to a general denial, contained a separate defense and two counterclaims, the separate defense alleging, on information and belief, that the plaintiff had negotiated sales to a competitor prior to the termination of his employ by the defendant to its damage.