Stirn v. Hemken — 25 N.Y.S. 583

Majority

p. 583

(72 Hun, 91.)

STIRN v. HEMKEN et al.

(Supreme Court, General Term, First Department.

October 13, 1893.)

Headnote

Contract by Firm—Accounting.

Under a contract by which a firm agreed to pay plaintiff a share of the profits on certain goods to be imported and sold by them, the contract to continue for five years, plaintiff is not entitled to an accounting for the period subsequent to the dissolution of the contracting firm and the formation of a new firm, where it does not appear that the new firm assumed the obligations of its predecessor, or that it continued the importation under the contract with plaintiff. '

Appeal from special term, New York county.

Action by Leo Stim against Hans Hemken and others for an accounting. From an interlocutory judgment directing defendants to account, but limiting the period which it should cover, plaintiff appeals.

Affirmed.

The following is a copy of the contract between the parties:

“Hemken, Slayton & Co., Importers and Manufacturers, 32 Greene Street,

“New York.

“January 30th, 1888.

“We agree to pay Mr. D. Stim twenty-five per cent, on the net profits on chenille fascinators and shawls, also including sales of these articles for the Canada trade; account of sales to be rendered quarterly. It is also agreed that no one else shall, through Mr. L. Stim, be advised concerning this article. This to hold good for the term of five years.

“Hemken, Slayton & Co.”

p. 584

Plaintiff’s testimony as to the making of the contract is as follows:

“This contract was signed by one of the members of the firm. I entered upon the discharge of my duties under it. I gave them the samples, stopped the importation of the shawls on my own account, gave them the names of the customers, price of the article, name of the manufacturer,—gave them full instructions as regards the article. Prior to the,making of this agreement I was in business on my own account in this same line, and on the making of it I gave up business on my own account, and furnished them with the names of the manufacturers abroad from whom we had formerly received these goods. I did not sell any. I gave them the names of the customers, gave them the samples, gave them the names of the manufacturers, and put them into a position of doing the business that I had done theretofore, and I gave my own business.”

Argued before O’BRIEU, FOLLETT, and PARKER, JJ. *

Charles Strauss, for appellant.

Blumenstiel & Hirsch, for respondents.

This action was brought to compel defendants to account under an agreement by which they, under the firm name of Hemken, Slayton & Co., bound themselves to pay commissions on certain goods to be imported and sold. The agreement wras for a term of five years, and was dated January 30, 1888. The defendants, having immediately thereafter imported and sold the goods therein mentioned, rendered an account in March, 1888, for plaintiff's share of the profits, and paid him the amount, informing him at the same time that the firm would discontinue dealing in such goods. Subsequently, and in September, 1889, the firm dissolved by the retirement of Toepken, one of its members, and thereafter the remaining partners formed a new firm under the name of Hemken & Slayton, and continued the business until 1890, when Slayton retired, and the defendant Hemken thereafter conducted the business in his own name. Upon such facts, the trial judge decided that plaintiff was entitled to an accounting, but limited the date of the accounting to September, 1889, which was the date of the dissolution of the firm with which the contract was made; and it is from such limitation that this appeal is taken, the appellant contending that he was entitled to have an accounting from each and all of the defendants for the entire period of five years. The difficulty with this contention, however, is that there is no proof in the case that subsequent to March, 1888, any of the articles mentioned in the contract were imported or sold by the defendants. But, apart from this, we think the trial judge properly limited the account to the date when the firm Avas dissolved. The fact that another firm was organized did not impose upon such firm all the obligations of a former firm with which some of its members may have been connected. Of course, there are cases which are authority for the position that had the new firm assumed the obligations of the contract, or if it had been proven that they continued the importation' and sale of these goods, thus reaping the benefits under the contract, some basis might have been laid for an accounting beyond the date of the dissolution of the first firm; but, in the absence of such evidence, we think that the conclusion

p. 585

reached by the trial judge was as favorable to the plaintiff as the facts warranted. The judgment appealed from should therefore be affirmed, with costs.