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App. Div.] First Department, April, 1910. be paid on the rental reserved for the first ten years, the complaint was amended by limiting the demand to a percentage on the rentals reserved for the first ten years. The plaintiff was not the procuring cause of this lease, although it may well be that but for his introduction of Seleznick to defendant it would not have been made, and, therefore, he was not entitled to recover. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 381; Hay v. Platt, 66 Hun, 488; Willard v. Ferguson, 125 App. Div. 868; Cole v. Kosch, 116 id. 715.)

On the part of the plaintiff, evidence on the main issue was given by himself and Seleznick. The material part of their testimony, viewed in the most favorable light to the plaintiff, merely shows that Seleznick was conducting a retail jewelry store on Sixth avenue, and the plaintiff in some manner learned, or it occurred to him, that Seleznick was or might be desirous of changing the location of his business; that, with a view to interesting Seleznick in one of these stores, the plaintiff interviewed the assistant secretary of the defendant to ascertain the rentals demanded, and thereafter opened negotiations with Seleznick, who made a proposition for one of the stores, which was declined; that defendant's assistant secretary, on Seleznick's suggestion, finally offered to rent one of the stores to him on his final proposition, provided he obtain tenants for two of the other stores; that Seleznick undertook to obtain such tenants, but abandoned it, and formed a syndicate for procoring lease of nine of the stores, and without the assistance or intervention of the plaintiff he succeeded in interesting friends and acquaintances, and in organizing a syndicate, and in negotiating the lease to Kurzrock, conducting the negotiations himself directly with the defendant as is ordinarily done by a broker, having, to the knowledge of the defendant, abandoned any intention of taking a lease of one of the stores for conducting a jewelry business therein, as had been originally contemplated; that the defendant was aware of the fact that Kurzrock in taking the lease was acting for himself and others, including Seleznick, and that the latter intended to and did take and occupy one of the stores as a brokerage office, a business which, after giving up the jewelry business, he had determined to engage in, and that, before the consummation of the lease, Seleznick claimed a commission, and defendant deinurred on the ground that he was a principal, but he insisted upon his right to commissions, First Department, April, 1910.

(Vol 137. and defendant yielded to the extent of one per cent on the rents reserved during the first two years.

There is no allegation or proof that the lease was taken in the name of Kurzrock for Seleznick, except as it is alleged that he was to have and did take one store in bad faith, and with a view to depriving the plaintiff of his cominissions, which would have presented another question. (See Freedman v. Havemeyer, 37 App. Div.518; Miller v. Vining, 112 id. 304; Waters & Son v. Rafalsky, 134 id. 870.) On the contrary, as has been seen, the plaintiff alleges that he procnred Kurzrock to make the lease. There is no evidence to sustain this allegation. According to his own testimony he met Kurzrock by chance once at Seleznick’s store, and was there introduced to him by Seleznick, and he was aware of the fact that Seleznick was negotiating with Kurzrock originally for one of the three stores, and later as an associate or member of one syndicate to take all of the unrented stores, and the subject was discussed between him and them; but this is as far as the plaintiff had any connection with Kurzrock. The lease is under seal, and the defendant even if it had knowledge, which its officers deny, that Kurzrock was taking the lease for the benefit of others as well as himself, it could only look to him for performance, and neither party could be heard to say as against the other that others were interested. (Spencer v. IIuntington, 100 App. Div. 463; aifd. on opinion below, 183 N. Y. 506.) It is quite likely that the efendant might not have made the lease had the plaintiff not inttbduced Seleznick to one of its officers, but he was introduced as a prospective tenant for one of the stores for conducting the retail jewelry business therein, and although he subsequently occupied one of the stores under Kurzrock, such occupancy was not according to his original intention, or of the same nature, or in consummation of the original negotiations.

Counsel for the defendant, at the close of the plaintiff's case, duly moved for a nonsuit upon the ground that the evidence neither established the cause of action alleged nor any cause of action. This was denied, and an exception was duly taken. It was renewed at the close of the evidence, and an exception was again duly taken to a like ruling. We are of opinion that the case did not require submission to the jury, and that the court erred in denying these App. Div.]

First Department, April, 1910. motions. But if the evidence was sufficient, in any possible view of it, to take the case to the jury the verdict would be clearly against the weight of the evidence. Moreover, the verdict conld not be sustained for the reason that the court declined a request, duly made by defendant, to charge “that if the plaintiff Meyer introduced Mr. Seleznick to the defendant as a prospective tenant for one store, and Mr. Seleznick afterwards applied to the defendant either on his own behalf or for himself and others for a lease of a number of stores, this would not give the plaintiff any claim for commissions.” That request, considered in the light of the complaint, which is not for the recovery of a commission for procuring a tenant for one store, but for procuring this lease to Kurzrock for the nine stores, is a sound proposition, and should have been charged, and the exception to the refusal to so charge was well taken.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

INGRAHAM, F. J., McLaughlin, Miller and Dowling, JJ, concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

HARGRAVES Mills, Appellant, v. WILLIAM S. GORDON, Respondent.

First Department, April 8, 1910.

Sale - bailment locatio operis faciendi — contract to manufacture goods

- intention of parties — pleading - damages.

Contracts must be construed according to the intention of the parties, if their

intention be clear, and if not, then as they have shown it by practical

construction. Where the plaintiff, a manufacturer of cotton cloths, made a contract with the

defendant, in the business of buying rough cotton goods and converting them into a finished product, whereby he agreed to sell to defendant a quantity of cloth of specified quality, the defendant to furnish silk to be woven into the cotton warp, and the contract contains appropriate words for a contract of sale

First Department, April, 1910.

[Vol. 137. and none of the provisions in respect to workmanship which would appear in a contract of employment, and the acts of the parties show that they considered it a sale, and the warp furnished by plaintiff was greater in bulk than the silk furnished by defendant, the transaction constitutes an executory contract for the manufacture and sale of the cloth and not a bailment, although the silk and yarn which defendant furnished, or was to furnish, were of greater value

than the warp furnished by plaintiff. It is pot essential that plaintiff should characterize the transaction as a sale in his

pleadings, if he set forth the facts, since the nature of the contract is a

question for the court. Damages for the loss of use of the looms and the wages of the weavers during

the time the looms were awaiting silk, which the defendant failed to furnish,

may be recovered in an action for breach of contract. MILLER, J., dissented.

APPEAL by the plaintiff, Hargraves Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of June, 1909, upon the verdict of a jury.

Wallace Macfarlane, for the appellant.

Walter D. Clark, for the respondent.

LAUGHLIN, J.:

The appeal was taken originally from an order denying plaintiff's motion for a new trial, but thereafter a stipulation was made and filed withdrawing the appeal from the order, and it was therein stipulated in behalf of the plaintiff that the evidence was sufficient to sustain the verdict on every question submitted, and that the only question it would seek to review on the appeal was the “question of law as raised by the exceptions, namely, whether the transactions between the parties constituted a sale or a bailment.” The record, therefore, was prepared to present only the material evi. dence bearing upon that question of law.

The plaintiff recovered a verdict for $951.72, which it claims is inadequate and resulted from erroneous rulings made by the trial court with respect to the nature of the action by which it was improperly limited in its recovery. The plaintiff is a corporation organized under the laws of Massachusetts, and it has a plant for the manufacture of cotton cloths at Fall River in that State. The

App. Div.]

First Department, April, 1910. defendant was a merchant engaged in business in the city of New York under the name of W. S. Gordon & Co. He was known as a converter, and the business he conducted consisted in buying gray cloth made of cotton and silk, and cotton in the rough as it comes from the looms, and of having it converted into a finished product, and selling it to jobbers and to retail dealers, and occasionally, but not usnally, he furnishes some of the material to be manufactured. The action is based on a contract in writing, and is brought to recover $4,019.81, being the purchase price of 850 pieces of cloth known as cotton cloths, but consisting in part of silk, containing 40,198 yards, which were delivered to and accepted by the defendant, and $1,351.54, the value of mercerized yarn and silk purchased by the plaintiff for the defendant, and used in the manufacture of said goods, and the freight charges paid thereon, and $1,859.26, being for a balance over and above the sum of $911.56 paid to apply thereon, alleged to have been caused by defendant's failure to furnish silk in accordance with the contract to be used in the manufacture of the goods, which resulted in stopping the operation of inany of the plaintiff's looins, making in all the sum of $7,230.61, for which amount with interest thereon from May 15, 1902, plaintiff demanded judgment. The first item of damages claimed only is involved in the appeal and the single question presented is whether the contract was, as claimed by the plaintiff, an executory contract for the manufacture and sale of the cloth, or whether, as claimed by the defendant, it was a contract by which the plaintiff was employed to manufacture the goods which were in part furnished by the defendant, on which theory it would involve a bailment of the goods so furnished by the defendant and the performance of work, labor and services thereon by the plaintiff. The court ruled upon the trial and instructed the jury as matter of law that the contract was not a contract for the manufacture and sale of the goods, but was for a bailment of goods and for the performance of work, labor and services thereon, and permitted the jury to allow defendant's second counterclaim on that theory. The plaintiff duly excepted to these rnlings.

The plaintiff employed a broker to negotiate the contract for it, and it was made by the broker for both parties in the name of the treasurer of the plaintiff. The contract was as follows:

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