Lyons v. Jube — 44 N.Y. St. Rep. 744

Majority

p. 744

Frank Lyons, App’lt, v. John P. Jube et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Services—Commissions.

Plaintiff sold goods on commission for defendants, and also made collections from his customers when on the road. Frequent settlements were-, had, but no charge for collecting was made,-except in a few cases. After leaving their employ he brought this action for commissions on such collections. Held, that the complaint was properly dismissed.

Appeal from judgment dismissing the complaint

A. J. Spencer, for app’lt; Charles H. Machín, for resp’ts.

The proof shows that plaintiff sold goods for defendant on commission for upwards of five years.

An account was kept between the parties which was open to-plaintiff to examine at any time. Frequent settlements were had and receipts in full were given.

After leaving defendant’s employ plaintiff brings this action to-recover for collections made by him during the five years. During that time no account of the collections made "by him had been kept by either party; the amount must be conjectured.

His claim was not advanced until after his employment ceased.

The fact that in a few cases he rendered a bill and received pay for certain collections may be considered as an evidence that in the other cases no charge was to be made.

On the whole case the fact appears to be that plaintiff when going among his customers to make sales took with him the bills made out for past sales, and collected them at the same visit. It. might, well be that so doing would impose no burden upon him, and that he would willingly make the collections to help along the business, and make his usefulness more apparent.

We think it was correctly held below that no express contract' for further compensation was proved, and that none could, be; implied.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J,, concur.