Ayres v. Quigly Furniture Co. — 35 N.Y. St. Rep. 460

Majority

p. 460

Reuben B. Ayres, App’lt, v. The Quigly Furniture Co., Resp’t.

(New York Superior Court, General Term,

Filed January 5, 1891.)

Headnote

1. Services—Commissions.

Plaintiff agreed with defendant’s president to introduce one S. to him in consideration of an agreement that defendant would pay him a commúsionion all goods sold through such introduction. Held, that if the introduction was made the plaintiff was entitled to the commissions on all sales made through such introduction, and that it was not necessary that S. should be ready and willing to buy.

0. Same.

It appears that S. went to defendant’s factory, examined its goods, ascertained their price, and delivered the list to a hotel company and that

p. 461

subsequently the goods were purchased by another company and sold to the hotel company. Held, that whether tile sale of these goods was through this introduction was a question for the jury,' and not one of law for the court, and. that a" dismissal of the complaint was error.

Appeal from judgment on the dismissal of the complaint

J. M. Ferguson, for app’lt; Wm. P. Quinn, for resp’t

The complaint alleged a special contract whereby the defendant agreed to pay to the plaintiff a commission of five per cent upon any sales which the said defendant should make by reason of the introduction by the plaintiff of one Seghers to the defendant.

The plaintiff to prove this allegation testified as follows: “ I then asked him (the president of the defendant), if he would give me a commission of five per cent, if I would introduce him to this man, on all goods that he might sell through this introduction; he said that he would.”

The evidence is denied, but it was sufficient to sustain a finding of the jury that the contract, as alleged in the complaint, was made.

The contract thus sued on is a special contract for the payment ■of a certain specified amount for the performance of a certain specified service, and it thus differs from an employment of a broker to sell goods. In such a case the law implies an obligation upon the part of a broker to procure a purchaser ready and willing to enter into the contract upon his employer’s terms, and he is not entitled to commissions until he has performed this obligation. Wylie v. Marine Nat'l Bank, 61 N. Y., 415 ; Sibbald v. Bethlehem Iron Co., 83 id., 378.

In this case, however, the contract as alleged specified the service that the plaintiff was to perform; he was not to procure a purchaser ready to purchase the defendant’s goods, but he was to introduce the defendant to a person named, and for that service he was to have a commission of five per cent, upon all goods that the ■defendant should sell “through this introduction.”

The cases cited by the respondent as to the implied obligation which a broker assumes and which he must perform before he is •entitled to commissions, do not apply .to such a contract.

The plaintiff testified that he did introduce the person named to the defendant, and if the jury believed his statement they would, I think, have been justified in finding a verdict for the plaintiff for the percentage named upon the sales through the introduction.

I think, also, that the evidence would have, sustained a finding of the jury that the sale that was afterward made to the Ohadbourne Furniture Company was made through the introduction of Seghers to tffe president of the defendant Seghers, after the introduction, went to defendant’s factory, examined the goods, ascertained the price of certain goods, of which a list was made, and delivered this list to the officers of the Hotel Company; subsequently the same goods were purchased from the defendants by the Ohadbourne Furniture Company, and resold to the Hotel Company.

Whether or not the sale of this furniture was through thiá in

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traduction depended upon inferences to be drawn from, these facts, and in such a case, although the evidence be uncontradicted, the question is one of fact and not of law, for the determination of the jury.

. I think, therefore, that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the .event.

Sedgwick, COh. J., and Freedmam, J., concur.