11 Misc. 340 | New York Court of Common Pleas | 1895
This action was brought on a promissory note for $65.10, dated August 23,1889, payable one month after date. Defendant admitted his liability upon the note, but set up a counterclaim for commissions upon the sale of five printing presses made between July, 1889, and March, 1890. From the evidence it ap
The giving of a negotiable note by the defendant raised a presumption that a settlement had been had, and that the defendant was indebted to the plaintiff. In other words, the giving of a promis-
“The amount for which the note was given was for the balance of Mr. Yorkston’s account with us at that time. I wanted to get it closed up, and I asked Mr. Yorkston to give us a note for it, which he said he would do, and he did.”
Again, when asked for the payment of the note by plaintiff’s attorney, he did not claim it had been paid by commissions earned, but that the note was to be paid in the way before stated. In view of these facts, it seems extremely doubtful whether there should have been any recovery for these commissions, even granting that they had been earned. But, in our judgment, after a careful perusal of the evidence, the defendant failed to show any express or implied employment by the plaintiff to make the sales on which commissions were claimed. The only evidence of any employment prior to the sale of these presses was in 1884. After that time, and up to the January preceding this sale, defendant had been in the employ of the Duplex Manufacturing Company, and he himself testified he had no conversation with the plaintiff relative to selling presses for them prior to that time. It is evident, therefore, that there was no express contract of employment; and from the fact of a former employment, which had terminated, no agency could be implied. 1 Am. & Eng. Enc. Law, 342, and cases cited. In O’Neill v. Howe (Com. Pl. N. Y.) 9 N. Y. Supp. 746, it is said:
“Ordinarily, the leaving of defendant’s employ would terminate the contract for a commission on sales, and any claim for commissions where * * * the claim is based upon- work, labor, and services in the sale of goods at defendant’s request.”
The only other ground upon which an employment can possibly be claimed is that, by an acceptance of defendant’s alleged service, a promise to pay on the part of the plaintiff may be implied. But the defendant was not a regular broker. He did not announce himself to plaintiff’s officers as a broker. He did not make claim for a commission at the time he introduced Mr. Price, and said nothing from which plaintiff’s officers could infer that he had anything to do with bringing the purchaser to plaintiff’s place, and he left that place before negotiations had been begun, or any price named or terms mentioned for the purchase. It is well settled that if a broker, without a previous request, brings a customer to a vendor, and the latter, witliout further acceptance of the broker’s services, takes the customer, the broker is not entitled to compensation. An owner is not obliged to refuse a possible customer because services, which he has not requested, have been obtruded upon him;
Again, we think there was no sufficient evidence to support the finding of the jury that the rate of commissions in New York City was 10 per cent. It is true, the defendant testified that 10 per cent, was the usual custom where the price asked is given, but he also testified that where the price is reduced the commissions have to suffer, sometimes to the extent of 5 per cent., sometimes 7£ per cent., and even more. It is clear, however, from the defendant’s cross-examination, that this commission of 10 per cent, related to his sales made in the West, and not in this city. But, even if it were, he is entirely uncorroborated in regard to it, and is contradicted by Ogden Brower, Mr. Ahlstrom, a witness for plaintiff, and Mr. Bresnon, a witness produced by defendant, who all testified that they knew of no custom in the trade in regard to the amount of commissions, and that the • compensation in that class of business was a matter of bargain on each sale. The burden of showing the custom was upon the defendant. Where one party, who has the burden of proof, swears unqualifiedly and explicitly in support of his contention, and the other party as unqualifiedly and explicitly swears to a contrary state of facts, and there is no evidence in the case corroborating the party who has the burden of proof, he fails to make out his case. Stevens v. Trask (Com. Pl. N. Y.) 18 N. Y. Supp. 117; Smith v. Gunn (Sup.) 12 N. Y. Supp. 808; Syms v. Vyse, 2 N. Y. St. Rep. 106. We therefore think the counterclaim should have been dismissed, and a verdict directed for the plaintiff upon the note. The judgment must therefore be' reversed, and a new trial ordered, with costs to the appellant to abide the event All concur.