11 N.Y.S. 431 | New York Court of Common Pleas | 1890
The learned counsel for appellant appears to be laboring under a misapprehension concerning the nature of plaintiff’s claim in this action. It appears from the complaint, as well as from the evidence for the plaintiff taken upon the trial, that the agreement entered into between him And the defendant was that, if the plaintiff would use his influence and endeavors to secure for the defendant a contract with one Devin to supply certain cabinet work for the latter’s houses, the defendant would pay to him,
It may have been unwise for the defendant to enter into such an arrangement with the plaintiff, but that fact alone is not sufficient to warrant the court in relieving it from the consequences of the improvident acts of its-agents. If such an arrangement was knowingly entered into, there appears-to be.no good reason for refusing its performance by defendant. The case here presented is analogous to that of Lampleigh v. Brathwait, 1 Smith, Lead. Cas. 67, in which the plaintiff agreed to endeavor to secure for the defendant a pardon, upon the latter’s promise to pay to the former for his services the sum of £100. The court in .that case held that it was immaterial whether or not the pardon was procured through the plaintiff’s efforts, and that proof that the plaintiff did render services in endeavoring to procure the-pardon was sufficient to entitle him to a recovery. In the present case, it abundantly appears from the plaintiff’s testimony, and from that of defendant’s witness Devin, and defendant’s-Exhibit 2, which is a letter dated June 29, 1888, from the witness Devin to.the plaintiff, wherein piainti.. s services are acknowledged, as well as that plaintiff did render services in and about his endeavors to secure the contract from Devin. The exclusion of the following questions by defendant’s counsel to the witness Devin was perfectly proper: “Question.- Were you induced by the statements of Mr. Hume to-make the contract with the Flint Co. which you did?” “Q. Did you tell them, the defendants, when you went there, that it was by reason of the acts of Mr. Hume that you came there to make that contract?” “Q. Did you ever mention Hume’s name to Flint & Co. when you went there to sign the contract, or tell them that you were introduced by Hume?” And this is so for the reason that, under the contract claimed to have been entered into by the plaintiff with the defendant, it was wholly immaterial whether or not Devin was induced by Hume to make the contract, or whether or not Devin, at the-time of ente,ring into the contract, disclosed to the defendant that he proposed, to make it by reason of plaintiff’s endeavors, or that he was introduced to-the defendant by the plaintiff. If the plaintiff’s version of his agreement with the defendant is true, he was to be paid compensation only l'or his services in endeavoring to procure a contract irrespective of the successful issue-of such endeavors. There is no force in the appellant’s exception to the alleged refusal of the trial justice to charge the jury “that if they find that on the 7th day of June, when the alleged contract with the plaintiff is alleged to have taken place with the defendant, at that time Mr. Hume was negotiating with Mr. Devin to do the work himself, in that event the jury must find a verdict for the defendants. ”
The judge did charge the jury substantially as requested by defendant’s counsel. He said: “The plaintiff cannot have commission from both sides. It is claimed by the defendants that he.was endeavoring to do that. If that, was true, while he was working for the defendant, he cahnot recover, in this action at all, provided you believe he was undertaking to get commissions from Mr. Devin as well. ” It appears that all the material facts in dispute were properly left to=the. jury; that there was sufficient evidence to sustain a verdict for the plaintiff; and I can discover no errors on the part of the trial court prejudicial to the defendant. The judgment appealed from should be affirmed, with costs.