98 Misc. 382 | N.Y. Sup. Ct. | 1917
The above entitled action was brought on for trial before this court at a Trial Term thereof held in the county of Nassau in the month of November, 1916. After a jury had been impaneled and sworn and the case opened, the jury was waived and the trial proceeded before the court without a jury, the court being empowered to direct a verdict with the same force and effect as though a verdict was rendered by the jury; all upon request and due stipulation of the parties hereto and their attorneys.
This action is brought to recover commissions for services rendered by the plaintiff to, for and in behalf of the defendant in securing for the defendant from the Imperial Russian Government a contract for the manufacture and sale by the defendant to said government of 1,000,000,000 cartridges. The amount claimed to be due, if any, is not disputed. The commissions, however, were to become payable only as and when and in proportion as payments were received by the defendant from the purchaser and only to be paid out of the payments under the contract.
The evidence shows that the preliminary negotiations with the Russian Government contemplated the acquisition by the defendant of the Savage Arms Company as a condition precedent to the making, of a contract which would be binding on the Russian Government and the defendant fully understanding this on September 29, 1915, entered into an optional agreement with a committee representing the controlling interest of the Savage Arms Company providing for the purchase of a majority of its stock. This optional agreement mentioned the price of said stock but omitted upon advice of counsel, apparently, to specify the terms of payment.
Fortified with this and other optional agreements, looking toward the compliance with the other condi
It appears, therefore, that upon the execution and: delivery of said contract of October fifteenth, with the-Imperial Russian Government, all of said conditions-having been clearly set forth in the various offers and negotiations by and between the parties and specifically within the intent and contemplation of the parties, the defendant by the execution and delivery of said contract accepted such a contract which had been secured by the plaintiff, as was satisfactory to it, and such a contract as the plaintiff had been requested and
■Upon the trial the defendant moved to dismiss the complaint on the ground that said complaint failed to state a cause of action in that it failed to allege and prove readiness, willingness and ability on the part of the Imperial Russian Government to perform. It; appears, however, as hereinbefore stated that the plaintiff secured the contract with the Imperial Russian Government which not only was in the contemplation of the parties theretofore, but also was satisfactory to the defendant and which was subsequently
The next question raised by the defendant upon the trial was that the contract of October fifteenth by and between it and the Imperial Russian Government was merely a preliminary one and that it was contemplated that there was to be a further contract after the performance by defendant of the conditions therein referred to. Upon the trial the defendant absolutely failed to prove that this contention had any merit and said claim is wholly untenable for the reason that the contract was complete in form, and a careful consideration of all the evidence in the case indicates no intention on the part of the parties to execute a further contract, but does indicate clearly that such was not within the contemplation of the parties. Such conclusion finds full support in Burnell v. Chapman, 173 App. Div. 108, which case is clearly distinguishable upon other points from the case at bar, for the
■Upon the trial the defendant sought to prove that the plaintiff and defendant did not occupy towards each other the relation of agent and principal but were engaged in a common enterprise or venture, and that there was a collateral understanding or agreement to the effect that plaintiff’s commission or compensation was dependent upon the performance of the contract between the defendant and the Imperial Russian Government and the success thereof. A review of the evidence fails to show any support for any such collateral understanding or agreement, and the exhibits and pleadings spem conclusive that such alleged defenses are without merit. Likewise defendant’s contention that the defendant had been induced to enter into the contract with the Imperial Russian Government and the optional agreement with the Savage Arms Company, by representations of the plaintiff of his ability to finance or obtain financial backing to carry out said agreements or contracts; and the equally inconsistent defense or contention that plaintiff so conducted himself that the defendant was unable to acquire control of the Savage Arms Company, were wholly without merit. It would seem, therefore, that the only limitation of plaintiff’s right to the payment of his- commissions, as indicated by the parties’ written agreement, was that the time of the payment was postponed as therein specified.
In the brief submitted in behalf of the defendant,
Finally, it appears clearly that the defendant sought to comply with all the conditions contained in its contract of October fifteenth with the Imperial Russian Government, including the purchase of the Savage Arms Company by negotiations principally for obtaining credit, upon and financial assistance from the first payment or deposit under said contract with the Imperial Russian Government and, upon its failure to arrange terms which would enable it so to do, refused and neglected to carry out the contract which the plaintiff secured for it. Under the authorities the plaintiff is entitled to his commissions even though there is a failure of performance, the failure being due entirely to the act and fault of the defendant. Stone v. Argersinger, 32 App. Div. 208; Taylor v. Enoch Morgan’s Sons Co., 124 N. Y. 184; Hixs v. Edison El L. Co., 10 App. Div. 175; Gilder v. Davis, 137 N. Y. 505; Folinsbee v. Sawyer, 8 Misc. Rep. 370; Kalley v. Baker, 132 N. Y. 1; Hart v. Hoffman, 44 How. Pr. 168. Plaintiff, therefore, is entitled to a direction of a verdict under the stipulation in his favor for the sum of $400,000, but without interest, the time of payment thereof having by agreement been postponed.
Judgment accordingly.