Dewey v. Brown — 35 N.Y. St. Rep. 159

Majority

p. 159

Jennie B. Dewey, Resp’t, v. Calvin P. Brown, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 23, 1891.)

Headnote

Services—Commissions oe traveling agent.

Plaintiff’s assignor was employed by defendant to sell Ms goods wMle on a trip in the west. Orders were obtained by Mm on such trip, and on his return, at defendant’s request, he wrote to persons he had seen, soliciting further orders, which were obtained. No new employment by defendant on his return was shown. Held, that plaintiff was entitled to recover commissions on the sales so procured by letter; that for aught that appeared the letters were but a continuation of the efforts to secure sales, though sent at defendant’s special request.

p. 160

Appeal from, a judgment entered in the clerk’s office of Ontario county on the 8th day of May, 1890, for the sum of $551.08, upon a report of a referee.

H M. Morse, for app’lt; EHdwin T. Hicks, for resp’t

This action was brought to recover commissions upon sales made by the plaintiff’s assignor, Albert L. Dewey, in behalf of the defendant, in the months of November and December, 1886, in the states of Ohio and Michigan.

The defendant is the proprietor of a manufacturing establishment known as the Shortsville Wheel Company. On the 20th of November, 1886, a verbal contract was made between Albert L. Dewey, the plaintiff’s assignor, and the defendant, whereby Dewey agreed to sell wheels for the defendant during a trip which he then contemplated in Michigan and elsewhere. The compensation secured by this agreement to Dewey on all sales made or orders taken by him was a commission of five per cent, being the sum ordinarily allowed for such services by the defendant and other manufacturers. After bis return from a canvassing trip in the states of Ohio and Michigan, and on the 27th day of December, 1886, Dewey, at the request of the defendant, wrote to various persons and companies soliciting further orders for wheels to be filled as they should be wanted during the year 1887.

The referee has found, upon adequate testimony, that while the agent was in these states, and between November 20th and December 27, 1886, he took orders for wheels for the defendant of the persons, corporations and firms named in the report. In response to such letters written by Dewhy after his return home, orders were sent in from some of such persons so addressed, and the total sales made by the defendant upon such orders were $12,088.54, five per cent of which would be $604.18. There remained unpaid to the plaintiff’s assignor the amount of these moneys stated in the report.

The principal litigation turns upon the question whether or not Albert L. Dewey was entitled to commissions on these particular orders so procured at least in part by letter. The contention in behalf of the appellant is that he is entitled only to commissions upon such sales as he effected while personally in Ohio and Michigan, and not on sales which resulted from letters which he wrote after his return home. The defendant, though availing himself of the profits of such orders given in response to Dewey's letters, seeks to avoid liability upon the ground that Dewey’s services ceased upon his return home as an agent travelling upon commissions, and that he was engaged merely in clerical work for the accommodation of the defendant in writing these letters. But the defendant has failed to show any new employment of Dewey. After the latter’s return home, the interview and consultation between the employer and employe were in harmony with the original contract and supplemental thereto. We are unable to discover any reason why the commissions of the agent should be limited to the orders'personally received by him while away from

p. 161

home. For aught that appears, the soliciting letters, written after his return from his western trip, were but a continuation- of his efforts to secure sales, though sent at the special instance of the defendant. It is not perceived that the orders so sent in were different in character from those the agent had personally received.

It follows, therefore, that when the sales made by the defendant resulted from such efforts of his agent, the percentage contracted for was due and p'ayable. Alike in the case of personal solicitation by written communication, the purchaser and the seller were brought together and the contract resulted to the advantage of the seller upon which the percentage contracted for -is to be reckoned. There remains nothing more to be done in the «sales thus effected than in cases of orders which were personally received by the agent while traveling. In either case the manufacturer had the right to reject the order, if it contemplated a credit with which he was not satisfied. But where the minds of the parties, seller and buyer, are brought together by the acts of the agent which are the approximate cause of the sale, the commissions provided for by the contract are recoverable. Sussdorff v. Schmidt, 55 N. Y., 319 ; Martin v. Silliman, 53 id., 615; Lloyd v. Matthews, 51 id., 124

The learned referee has, with great discrimination, rejected all -claims made by the plaintiff’s assignor which were not clearly brought within the terms of the original contract.

The judgment appealed from should be affirmed.

Dwight, P. J., and Corlett, J., concur.