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Abel v. Nelson

104 N.Y.S. 362 Court N.Y. App. Term Decision date 1907-05-16 English

Delivered by BRADY, J.

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p. 362
ABEL v. NELSON.
(Supreme Court, Appellate Term.
May 16, 1907.)

Headnote

Principal and Agent—Compensation of Agent—Commissions on Sales—Orders Not Filled.
Where a person was employed to sell goods on a written contract for a commission on all net sales which he procured, to be paid only after the goods were paid for, he could recover his commissions, not only on'goods
p. 363
sold by him and paid for, but on goods the orders for which were not filled through the fault of the employer.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 209, 217.]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by William M. Abel against Hyman Nelson. From a judgment for plaintiff, defendant appeals.
Affirmed.
Argued before GILDERSDEEVE, P. L, and SEABURY and BRADY,JJ.
David Goldstein, for appellant.
Herman Roth, for respondent..

The defendant employed the plaintiff to sell goods under a written agreement to pay him 7-J per cent, commission on all net sales which he procured, said commissions to be paid after the payment for the goods sold by the salesman. The provision in the agreement that the commission was payable only after the goods were paid for places upon the plaintiff only the obligation of showing that either the goods sold were in fact paid for or that the failure to fill the orders was the fault of the defendant. Stone v. Argersinger, 32 App. Div. 210 , 53 N. Y. Supp. 63 ; Taylor v. E. M. S. Co., 124 N. Y. 188 , 26 N. E. 314 . It appears that orders to the amount of $1,165.90 were obtained and forwarded by the plaintiff to the defendant, and that goods to the value only of $400.75 were shipped by the defendant. The testimony is involved, and far from precise; but enough exists to warrant the court below in finding for plaintiff on the questions of fact and that he was entitled to judgment for the full amount.

Judgment affirmed, with costs. All concur.

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