Strong v. Prentice Brown Stone Co. — 55 N.Y. St. Rep. 927

Majority

p. 927

Charles L. Strong, Resp’t, v. The Prentice Brown Stone Co., App’lt.

(City Court of New York, General Term,

Filed November 27, 1893.)

Headnote

Brokers—Commissions.

Plaintiff brought about a contract for the sale of stone by defendant, for

p. 928

which he was to receive a commission based upon the difference between the cost at the quarry and the contract price. The first delivery of stone under the contract was not of the proper grade or quality as called for by the contract, and the purchaser declined to accept it or proceed further. Held, that plaintiff was not affected by the failure to perform the contract; that liis duty liad been performed when he brought the parties together and the contract was made.

Appeal from judgment in favor of plaintiff.

Warren Higley, for resp’t; Niles & Johnson, for app’lt.

This is an appeal from a judgment in favor of the plaintiff, and is an action to recover commissions for the sale of certain stone to one Hickox under a contract marked Exhibit J.

The plaintiff brought about this contract, and was to receive commission for same. See Exhibit I.

The commissions to be paid were to be the difference between fifty cents costs per cubic foot at the quarry and any higher price the plaintiff should secure for the defendant.

It being understood that the purchaser should also agree to pay the freight.

The cost of the freight as shown was 12-|- cents per foot. The contract secured by the plaintiff for the defendant fixed the price at 70 cents per foot which, after deducting the 62i- cents, left the commissions to which the plaintiff was entitled at 7-g- cents per cubic foot.

It is in evidence that the quantity to be used under contract was 9042 feet, which at 7j- cents amounts to $678.37.

After the making of the contract the defendant for the purpose of carrying out the same, sent a quantity of stone to Hickox the purchaser, who declined to accept it on the ground it was not of the proper grade and quality as called for in the contract, and thereupon refused to proceed any further.

It appears by the evidence that the defendant was in fault and did not in the first shipment send to the purchaser, Hickox, the grade and quality of stone called for.

This did not affect the plaintiff, his duty had been performed when he brought the minds of the parties together and the contract was made.

He had produced a purchaser who was ready, willing and able to enter into a contract upon the defendant’s terms. 61 N.Y., 410 ; 83 id., 378, 381 and 382.

The cases approving this are so numerous that it is unnecessary to cite them.

We think the charge of the justice under the evidence in the case was fair and proper, and find no error.

Judgment should, therefore, be affirmed, with costs.

Van Wyck, J., concurs.