Metz v. Luckemeyer — 36 N.Y. St. Rep. 85

Majority

p. 85

Bernhard Metz, Resp’t, v. Edward Luckemeyer et al., App’lts.

(New York Superior Court, General Term,

Filed January 5, 1891.)

Headnote

1. Services—Construction of contract for.

Plaintiff was employed by defendants to procure the placing with them of the accounts of a manufacturing firm, which he procured to be done, the goods to be sold in defendants’ name, for which they were to receive a certain commission. Thereafter a new arrangement was made by which defendants'were relieved from the obligation to sell and received a smaller commission. In an action to recover for plaintiff’s services, Held, that the question whether the accounts under the latter arrangement were such as were within the contemplation of the parties at the time of the employment was one for the jury to determine.

2. Same—Charge.

Although the testimony of the defendant showed that there was to be no compensation unless the taking of the accounts should be of value to ' them, yet where the preponderance of the evidence is that the accounts did prove of value to them it is not error for the court to charge that defendants were bound to pay the plaintiff something.

3. Same.

The court properly refused to charge that plaintiff’s compensation depended on the actual labor spent by him in the performance of the services, as the jury in determining their value were bound to consider the value to the employers of the benefits received by them.

4. Evidence—Offer.

An offer of documentary evidence, although only for a limited purpose, . must be absolute.

6. Same.

A question as to whether defendants were dissatisfied with a statement made by plaintiff is improper, as it calls for mental condition.

Appeal by defendants from judgment entered against them on verdict of jury, and from order denying their motion for anew trial, made upon the judge’s minutes.

G liarles Wehle, for app’lts; Ilorwitz & Herschfield, for resp’t.

The action was to recover compensation for services rendered" by the plaintiff to defendants, were merchants, doing a "business in the nature of the business of commission merchants, in procuring to be placed with the defendants the accounts, as they were called, of a manufacturing firm. It was explained on the trial that placing an account means that a house ships all the goods which they manufacture in a certain line. The commission house obtains the selling and does the shipping and guaranteeing, and other matters connected with the management of the goods, and for this the manufacturer pays a commission or percentage to the commission house.

The evidence showed, as the jury might find, that at defend

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ants’ request the plaintiff procured the account of a manufacturing firm to be placed with the defendants. Immediately, the manufacturing firm employed the plaintiff to assist in selling these goods, the “selling being done in the name of the defendants. At the outset the defendants had arranged that they should receive a commission of five per cent. After several months another arrangement was made, by which the defendants were relieved from obligation»to sell, the manufacturing firm agreeing to do that at their own expense, and the defendants were then to receive only four per cent.

On the trial, the defendants took the position that the plaintiff, as matter of law, could not recover for accounts placed with the defendants after the second arrangement. This was not correct, for it was a matter for the jury to find whether these accounts, as well as the accounts under the first arrangement, were such kind of accounts as was within the contemplation of the parties at the time of the employment

The court did not err in charging that, taking the testimony of Mr. Shefer as to the employment, the defendants became bound to pay the plaintiff something for the rendition of the services that he rendered to them. - Assuming that the. mere words of Shefer as to the employment might have the meaning that there was to be no compensation if the taking of the accounts should not be of value to the defendants, yet the preponderance of evidence was that the accounts did prove to be valuable. And the court had the right in charging to consider the correction of the testimony.

There was no exception to the charge that if there be a custom to pay the broker a commission of one per cent then the plaintiff was entitled to such a commission.

The learned counsel for defendants asked the court to charge, that if the plaintiff were entitled to a compensation as distinguished from a commission, the compensation depended not upon the quantity of the goods sold, but upon the actual labor spent by the plaintiff in the performance of the services. The court properly refused to charge this, because the jury in determining the value of the services were bound to consider the value to the defendants of the benefits received by them.

There was an original complaint in this action which was after-wards amended. On the trial the counsel for defendants offered in evidence the original complaint, for the purpose of showing “ the various claims made in this action,” but the counsel said he did not offer the complaint in evidence absolutely. It was excluded. Formally the ruling was right, for if the parties had a right to offer the complaint for a limited purpose, still the offer itself must be absolute. It could not be limited or conditional. But an examination fails to show that the single claim made in the original complaint varied from the single claim made in the amended complaint. The latter was fuller in its statement, but a jury could not have drawn from the difference of the two complaints an inference unfavorable to plaintiff.

The question to plaintiff of whether one of the manufacturing firm was not dissatisfied with the statement of plaintiff was ex-

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eluded properly. It simply called for testimony as to mental condition.

One of the manufacturing firm, when a witness, was asked whether the plaintiff stated to him that he was entitled to commission. There was nothing in the case that made it proper that the plaintiff should make such a statement, or probable that he would make it, after he had made his arrangement with the defendants, so that an omission to make it would affect an estimation of the probability of the arrangement having been made.

The other questions argued by the counsel for defendants have been examined. None of them calls for a reversal of the judgment.

Judgment and order appealed from affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.