197 A.D. 172 | N.Y. App. Div. | 1921
The complaint contains two causes of action. The first alleges that on or about the 6th day of May, 1920, the plaintiff and defendant entered into an agreement whereby the defendant agreed to sell to the plaintiff 600 gross tons of steel rails at fifty-four dollars a gross ton, and that thereafter, on the same day, the plaintiff entered into an agreement with Manuel Caragol & Son, Inc., for the sale of the merchandise previously purchased by the plaintiff from the defendant for the sum of fifty-six dollars per gross ton, and the plaintiff, at the special instance and request of the defendant herein, turned over. the said agreement to the defendant for the purpose of having the order filled, in consideration whereof the defendant herein promised and agreed with the plaintiff that the defendant would pay the plaintiff a commission of two dollars per gross ton; and that the defendant filled the order and shipped said merchandise amounting to 630 tons, and that the defendant is indebted to the plaintiff in the sum of one thousand, two hundred and sixty dollars. .
The second cause of action alleges that on or about the 19th day of May, 1920, the defendant agreed to sell to the plaintiff 1,000 gross tons of steel rails at fifty-four dollars per
The indebtedness under the first cause of action was admitted and the money deposited into court after the commencement of the action. Over the objection and exception of the defendant’s counsel the plaintiff was allowed to prove that on the seventh day of May when the contract was entered into for the resale of the 600 tons to Manuel Caragol & Sons, Inc., the defendant gave him a price on a further lot of 1,000 tons at the same price for Caragol, stating that Caragol was the plaintiff’s customer and the defendant would protect him. It was proved that the agreement for the sale and purchase of the 1,000 tons of steel rails was made directly by the defendant with Manuel Caragol & Son, Inc., on the 20th day of May, 1920, without the intervention of the plaintiff at all. On the 24th day of May, 1920, plaintiff wrote to the defendant: “ Please note that I have induced my customer, Messrs. Manuel Caragol & Son, Inc., to place an additional order with you for 1,000 tons of 80 pound rail, the same as covered by their order to you of May 7th, and ask that you protect me on this business, the same as on the 600 ton order.”
The evidence was improperly received. The plaintiff failed entirely to prove the second cause of action alleged in the complaint and the motion to dismiss made at the close of the plaintiff’s case and at the close of the entire case should have been granted.
The second cause of action, therefore, should be dismissed and the judgment reduced to $1,272, with interest and costs, and as modified affirmed, with costs to the appellant.
Clarke, P. J., Laughlin, Smith and Merrell, JJ., concur.
Judgment modified by dismissing second cause of action and reducing judgment to $1,272, with interest and costs, and as so modified affirmed, with costs to appellant.