209 A.D. 877 | N.Y. App. Div. | 1924
The original contract dated the 19th day of July, 1915, was not distinctly a contract of employment of the plaintiff by the defendant, but partly that and partly a contract to compensate the plaintiff for the use of his ideas and plans, not necessarily patented or patentable, in connection with the gas-fired steam and gas-fired water radiators, in which his ideas were used by the defendant, who, with plaintiff’s assistance, had designed a form of such radiators even before the contract was signed. Such compensation was to be based upon the selling price of radiators embodying the ideas of the plaintiff and manufactured by the defendant after the date of the contract; this I find to be true as to the originally designed radiators (including combustion chambers), each cast in two pieces, as well as those subsequently designed, manufactured and sold, each of which was cast in one piece. Those of the former type were designed, manufactured and sold before 1919, and the others thereafter. The parties recognized that both types were within the purview of the contract, and practically construed that document between themselves (Central Trust Co. v. West India Improvement Co., 169 N. Y. 314), to the effect that the last-mentioned radiators, which defendant claimed on the trial were not within the contemplation of the parties, were actually within its terms. The payment of compensation to the plaintiff for radiators sold between 1919 and June 1, 1921, and the payment of $1,000 to him after June 1, 1921, and the attempted payment of upwards of $5,400 to him after that date are inexplicable on any other theory; in fact, the answer of the defendant, in effect, concedes the construction of the contract contended for in this respect by the plaintiff. (See Solomon v. Vallette, 152 N. Y. 147.) The services to be rendered by the plaintiff personally were to be rendered only during his pleasure and when he was able so to render them; indeed, it is to be gathered from the contract that upon the date thereof the parties contemplated plaintiff’s possible or probable prospective inability to render services, because of a certain unfortunate tendency to drink to excess, over which habit I find that the plaintiff had no control. According to the contract, if he was unable to render service, was incapacitated by illness or for any reason beyond plaintiff’s control, or even if he did not use due diligence to conduct the sales of radiators, substituted performance was provided for in the contract — 'in that another salesman might be engaged by the defendant to act in plaintiff’s stead, the salary and expenses of such a salesman, not exceeding $400 per month, to be charged against plaintiff’s compensation; plaintiff was to receive from the defendant corporation “a royalty of ten per cent of the selling price of all * * * radiators, manufactured by them, their heirs, assigns or successors; ” and in addition he was to receive a sales commission of thirteen and one-half per cent upon the amount of the sales; an account was to be struck and settlement made “ to the party of the first part or his estate, or to his legal representative ” on the twentieth of each month, for goods sold during the preceding month; audits of the defendant’s accounts were provided for; further, it was provided that the ten per cent royalty was to be paid only in the eveint that the net profit from the radiators amounted to twenty per cent or more, but if less than twenty per cent the royalty was to be one-half of the net profit, but in no event less than five per cent. The fair construction of the