52 N.Y.S. 769 | N.Y. App. Div. | 1898
This action was brought to compel the defendant to account for sales of merchandise consigned to it as the selling agent of the plaintiff, and has resulted in a judgment in favor of the plaintiff against the defendant for the sum of $1,359.37. The amount due by the defendant to the plaintiff was not disputed. The defendant, however, set up as a counterclaim the damages sustained by a breach of two contracts, whereby the plaintiff employed the defendant to act as its selling agent for a period named.
It appears that there were two contracts between the plaintiff and the defendant, the first of which was dated March 30,1894, whereby the defendant was appointed the sole agent of the plaintiff in the cities of New York, Brooklyn, Jersey City and Hoboken, the plaintiff agreeing to pay the defendant a salary of thirty dollars per week,
The other contract which it is claimed was broken was known as the Pennsylvania contract, by Avhicli the defendant ivas to act as the agent of the plaintiff in the State of Pennsylvania, except the cities of Pittsburgh and Allegheny, for a period of one year from the 28th day of February, 1896, at a salary of tliii'ty-five dollars, payable monthly, and a commission on all sales.
It seems that the parties proceeded under the New York contract until September 1, 1894, when the plaintiff wrote to the defendant a letter, stating dissatisfaction with the sales in New York, and canceling the contract, under the right, reserved to either party, by the following express notice: “ According to our contract we hereby cancel our contract with you, the same to expire in three months, viz., December Jth, 1894. We feel under all the circumstances that we wish to clean up & see where we stand.” The letter also contained the following clause: “ In canceling our contract we do not say that we would not renew after January 1st. We simply propose cleaning up and see where we stand and how things have panned out and then judge whether to go ahead again or to stop the N. Y. end altogether. If we continue we want to do so on a much larger scale.”
This letter, therefore, was an express cancellation of the contract then existing, with a statement that after January first, if they continued to do business, it would be under some different arrangement. There is no evidence to show that this notice was ever retracted, or that the plaintiff did anything to withdraw it. The secretary and treasurer of the plaintiff testified that the plaintiff dealt under the contract from the early part of March, 1894, to September, 1894, and that from September, 1894, to March 20, 1896, the plaintiff transacted business partly with Cushman Brothers and partly with Cushman Brothers Company ; that up to March 20,1896, the plain
As to the Pennsylvania contract, we think it is quite clear that there was no agreement that it should continue for any particular time. The negotiations from which this contract resulted appear to have been commenced by a letter dated January 28, 1896. By that letter the defendant proposed to the plaintiff- to extend the business into Boston and New England, Buffalo, New York State, and Philadelphia and Pennsylvania, and to represent the plaintiff in these markets, fixing a certain compensation to be paid them for the services, and that the arrangement should go into effect on March first, and continue for one year. To that the plaintiff replied by a letter, dated January 30, 1896, in which was stated : “ We cannot at present accept your offer, & we would not advise you to let a good opportunity slip by to arrange with others, not knowing for certain if we will ever join you in the other departments or not.” After some other correspondence, on February 18, 1896, the defendant made a new proposition, by which, after reciting the fact that they had employed a Mr. Whaley, who had been recommended to them by the plaintiff, they .proposed that the defendant should begin selling on the Philadelphia territory and Pennsylvania circuit on March first, saying: “We are convinced that Mr. Whaley would make a success of your account, as well as the others that we shall handle, and you would have the special advantage at the start in that the number of lines he shall carry will be very limited. The salary for that territory would be $35 per month only, and commission on the sales, and if that proved a success you could add the other two territories recently mentioned by us.”
This, it will be seen, is an entirely new and different proposition from that contained in the letter of January twenty-eighth. From its nature it was to be temporary, with the proposal to add the other
We think, therefore, that the referee was entirely right in holding that there was no breach of either of the contracts by the plaintiff and that the defendant was not entitled to recover damages.
The judgment is affirmed, with costs.
Van Brunt, P. J., Rumset and Patterson, JJ., concurred.
Judgment affirmed, with costs.