196 A.D. 376 | N.Y. App. Div. | 1921
The plaintiff brought this action to recover commissions which he claims are due him under a written contract which is attached to and made part of the complaint. By this contract the plaintiff was employed as a salesman for defendant’s products in a specified territory, and defendant agreed to pay him a commission on orders obtained by bim. It is expressly provided in the agreement: “It is further agreed that commissions are not to become due Booth until the goods are paid for by the customers.” The complaint alleges that plaintiff continued in employment until October 29, 1918, and that he duly performed all the covenants -and conditions of employment on his part to be performed. It is further alleged that between August 1, 1914, and October 29, 1918, “ the-defendant received and accepted orders” for its products, which were taken by the plaintiff or which were orders upon which he was entitled to commissions under the contract, the aggregate amount of which entitled plaintiff to commissions in the sum of $5,803.95. The complaint goes on to allege, what is really a conclusion of law, that upon the receipt and acceptance of the orders, it became the duty of the defendant to fill the said orders and to deliver the merchandise covered by them to the purchasers thereunder and
The answer admits the making of the contract and that plaintiff was in defendant’s employ for the period alleged, but denies the other allegations in the complaint.
There is no allegation in the complaint that the defendant received payment for the goods mentioned from the customers, nor is there any allegation of fact as to how the defendant has violated or refused to perform the agreement, save the averment that defendant has in some way neglected and refused to perform the duty which plaintiff asserts was imposed upon it. But this is merely the plaintiff’s conclusion. There is no charge that defendant has acted arbitrarily or unlawfully or in fraud of plaintiff’s rights.
It is undoubtedly the law, as claimed by the learned counsel for the plaintiff, that where an agent procures orders for his principal upon the principal’s agreement to pay a commission therefor, the agent is entitled to his commission even though the principal does not ship the orders. Nor can the principal defeat the agent’s claim for commission by any arrangement or agreement with the purchaser to which the agent is not a party. Unless it is otherwise stipulated, the agent does' not assume the risk of performance. Where a commission is not to be paid until the transaction is closed, such agreement does not discharge the principal from the obligation to close in a reasonable time, and where an agent stipulates that his commissions shall be paid out of the proceeds of the transaction the principal cannot defeat recovery by failure on his part to perform his own obligations. (Fuller v. Bradley Contracting Co., 183 App. Div. 6, 20;
The order should be reversed, with ten dollars costs and disbursements, and defendant’s motion for judgment upon the pleadings granted, with ten dollars costs, but with leave to plaintiff to serve an amended complaint upon payment of costs.
Mills, Putnam and Blackmar, JJ., concur; Jenks, P. J., not voting.
Order reversed, with ten dollars costs and disbursements, and defendant’s motion for judgment on the pleadings granted, with ten dollars costs, but with leave to plaintiff to serve an amended complaint upon payment of costs.