107 N.Y.S. 1092 | N.Y. App. Div. | 1908
The plaintiff was the owner of a stock of goods and store fixtures, and the defendant was an auctioneer. The defendant submitted to plaintiff the following written proposition:
“We hereby advance you $5,000 on stock and fixtures contained in premises 241 6th Avenue. Same to be sold at public auction. All over and above the sum of $5,500 realized at public sale on stock and fixtures we will divide in equal-- parts. All expenses to be paid by J. E. Mosheim '& Co. Stock and fixtures guaranteed to bring not less than Six thousand ($6,000) dollars, and any deficiency below this amount will be paid by us.” This was accepted and signed by both parties.
The amount realized upon the sale was $6,201.05. The defendant tendered to plaintiff one-half of the amount over $5,500, insist
On trial the court directed a verdict for plaintiff on the basis of such one-half only, interpreting the contract as giving to defendant the $500 as well as one-half the surplus over $5,500.
We cannot agree with the interpretation placed upon the contract by the trial court. The contract is very.plain. The defendant did not buy the goods. He simply sold them for the plaintiff. He guaranteed that under liis conduct of the sale the goods should bring a certain amount, and made advancements before the sale was begun. For compensation for his services and expenses in conducting the sale, he agreed that he should take one-half of all the goods brought above $5,500. Hp to that amount all the proceeds belonged to the plaintiff absolutely. There can be no question as to the interpretation of so plain a contract.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, P. J., McLaughlin, Scott and' Lambert, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
