211 A.D. 781 | N.Y. App. Div. | 1925
The plaintiff is a domestic corporation engaged as commission merchants or brokers, and the defendant is a foreign corporation organized under the laws of the State of Maine and authorized to do business in the State of New York. The action was brought by the plaintiff to recover the sum of $4,893.75, which demand was afterwards increased by the consent of the defendant to $5,017.17, as and for commissions claimed to have been earned by the plaintiff in negotiating a sale by the defendant to one George Mogensen of 3,000 boxes of dried salt pork middles. At the trial the presiding justice directed a verdict for the defendant and judgment was entered thereon, from which the plaintiff has appealed, the plaintiff also appealing from the order denying plaintiff’s motion to set aside the directed verdict.
The plaintiff alleges in its complaint that at the special instance and request of the defendant the plaintiff rendered services in procuring the sale of 3,000 boxes of pork, known as dry short salt clear middles, that being the trade name for the portion of the hog sold and embraced in the contract.
The answer puts in issue the material allegations of the complaint and alleges that the plaintiff as a broker made a contract on account of the defendant with said Mogensen for the sale of said pork, and that as one of the conditions of the sale and in conformity with the usage and custom theretofore prevailing with
It was the contention of the plaintiff upon the trial and still is upon this appeal that the one per cent commission was due the plaintiff upon the selling price of the pork when the contract of sale was actually entered into between the defendant and the purchaser, Mogensen. The defendant, on the other hand, contended at the trial and still contends that the plaintiff was only entitled to its commission when the goods embraced in the contract were actually shipped. Upon the trial the defendant also, under the allegations of its amended answer, gave a large amount of evidence, which was uncontradicted by the plaintiff, showing that the general and universal custom of the trade was that such brokerage commissions were not earned "until the goods were shipped and accepted. In answer to such claim of the defendant the plaintiff took the position upon the trial and insists upon this appeal that while there was no actual delivery or shipment of the goods embraced in the contract, there was a constructive delivery to Mogensen of said goods in Chicago, which was equivalent to the shipment provided for in the contract. The defendant took exception to transactions entered into after the ms,king of the contract of sale, but the court permitted proof to be offered by the plaintiff thereon. The defendant, nevertheless, contends that the facts proven show neither shipment nor a constructive delivery of the merchandise to Mogensen, the purchaser; that while the goods, as disclosed by the evidence, were stored in Chicago after Mogensen had made default in taking the goods in accordance with the contract of sale to him, they were thus stored at the request of the plaintiff in an effort to insure ultimate acceptance and completion of the contract by Mogensen, and that said goods were not stored in the name of Mogensen, but in the name of the defendant.
The contract for the sale of the pork was effected through a letter addressed to the defendant by the plaintiff on May 31, 1919, and confirmed by defendant’s reply thereto of June 2, 1919. The plaintiff’s letter to the defendant was as follows:
*784 “ May 31, 1919.
“ The Independent Packing Co.,
'“ Produce Exchange Bldg.,
“ N. Y. City:
“ Gentlemen.— We confirm sale made for your account to George Mogensen, as follows:
“ 1500 —■ 500# net boxes strictly Dry Salt Clear Middles 8 /10 pieces at 32§/ net per lb. to buyer.
“ 1500 — 500# net boxes strictly Dry Salt Clear Middles 10 /12 pieces at 32f/ net per lb. to buyer.
“ The above f. a. s., provided buyer furnishes G. O. C. permit, and the goods to bé shipped from Chicago last half July.
“ Kindly arrange to credit our account with the usual 1% brokerage when goods are shipped.
“ Yours very truly,
“ MacDOWELL-PETERMAN CO., INC.,
“ A. Peterman.”
(Italics are the writer's.)
Defendant replied to this letter on June 2, 1919, as follows:
“ The Independent Packing Co.,
“ 41st and Halsted Streets
“ Chicago, 111.
“ D-24 Produce Exchange Building,
“New York City.
“ June 2nd, 1919.
“ MacDowell-Peterman & Co., Inc.,
“ 15 William Street,
“ New York City, N. Y.:
“ Gentlemen.— We hereby confirm sale made through you for the account of Geo. Mogensen — 50 Broad St. — said sale subject to your 1% brokerage.
“ 1500 boxes 8/10 D. S. S. C. Middles Z2U
“ 1500 boxes 10/12 D. S. S. C. Middles 32|£
“ Shipment from Chicago second half July.
“ Thanking you for the favor, we remain,
“ Yours respy.
“ THE IND. PKG. CO.
“ H. J. Finn.”
These letters constitute the only contract for the sale of the goods in question. Clearly by the letter of the plaintiff to the defendant the condition upon which plaintiff's brokerage fees were to be paid was fixed, and without any ambiguity it is provided
The goods in suit were intended for export and were to be delivered f. a. s. New York. The goods were to be shipped from Chicago the last half of July. The foreign purchaser of the goods, to whom Mogensen had sold the pork, defaulted, and it appeared from the evidence that within the period when the shipment was to be made Mogensen learned that he could not dispose of the goods which he had agreed to purchase from the defendant. On June 30, 1919, and before the time when the goods were to be shipped from Chicago, Peterman, president and treasurer of the plaintiff, called upon the defendant’s agent, Finn, at the defendant’s office in New York city, with reference to postponing for a time the shipment of the pork from Chicago. Peterman gave as a reason that Mogensen’s foreign buyer, to whom he had resold the pork, had fallen down on his contract. Peterman then suggested that the pork b,e stored and asked the defendant what it would do about it. Peterman asked the defendant to write a letter to his, Peter-man’s, concern in Chicago (plaintiff herein), assuring plaintiff that the merchandise would be stored in Chicago. Peterman stated that he wanted such a letter to show to his principal, Mogensen. Finn then suggested that Peterman dictate a letter, writing down just about what he wanted the defendant to say to Peterman’s concern. Thereupon Peterman dictated a letter purporting to come from the defendant’s New York office to the plaintiff in
“ Inasmuch as these goods were sold on f. a. s. basis, providing buyer can furnish G. O. C., Chicago will arrange for the shipment whenever these goods are ordered to come forward, and any extra incidental expense will be charged to Mogensen & Co.” (Italics are the writer’s.)
About July third the defendant advised Mogensen that it could arrange to store the pork in Chicago warehouses at certain rates per box per month, and on July seventh Mogensen notified defendant of his acquiescence in such arrangement. The defendant thereupon began to move the pork from its plant to the warehouses and warehouse receipts were taken in the name of the defendant and always stayed in defendant’s name. Peterman requested that some of the warehouse receipts should be attached to drafts and sent to Mogensen for payment. This was done but payment thereof was refused. On July 30, 1919, one Dottenheim, an executive in Mogensen’s firm, went to Chicago and there saw the president of the defendant and suggested to defendant’s president that the contract be canceled, which suggestion was refused. Dottenheim then represented that Mogensen was then in no position to take the pork, and requested the defendant to carry the merchandise for the purchaser, and that it was finally agreed that defendant should carry the merchandise for a time, providing the purchaser put up a margin of fifteen per cent. Thus it appeared that Mogensen was unable to perform his contract, and the defendant could have at that time declared a default and sued for damages; but it clearly appears by the evidence that the defendant sought in every way to aid the buyer and to insure the ultimate performance of the contract and acceptance of the pork embraced therein. As an inducement to the defendant to refrain from declaring the contract forfeited and suing for damages thereon Mogensen paid by way of margin to the defendant $25,000 in cash and gave the defendant a note for $48,500, payable in sixty days. This was said to be “ a margin against a declining market.” Dottenheim admitted that Mogensen could not borrow the money necessary to pay for the pork. Defendant’s president declined
Upon the appeal the plaintiff, appellant, contends that the construction of the contract was for the jury; that the burden of proving the existence of the custom pleaded by the defendant was upon the defendant, and that whether the defendant sustained that burden and whether the requirements of such custom as existed were satisfied in the case was for the jury to determine under the evidence; that it was for the jury to determine the meaning to be attached to the letter of the plaintiff to the defendant stating the terms under which commissions were to be due the plaintiff. It seems to me that the construction of the contract in suit was clearly for the court, and not for the jury. This contract, as originally made, consisted of the two letters, the one from the plaintiff to the defendant óf May 31, 1919, and the confirmation thereof by the defendant to the plaintiff by the defendant’s letter of June 2, 1919. In the plaintiff’s letter the defendant is directed to “ kindly arrange to credit our account with the usual 1% brokerage when goods are shipped.” I am unable to see anything ambiguous in this language or to understand how it can be said that the contract was for construction otherwise than by the court. It has been uniformly held that such a clause, unambiguous in its terms, was for the court to construe. (Sweezy v. O’Rourke, 226 N. Y. 378; Strauss v. Ernstein, 232 id. 187.)
“ The plaintiff failed to make out a cause of action and defendants’ motion for a non-suit should have been granted.” (See, also, Larson v. Burroughs, 131 App. Div. 877, in which the Second Department said: “ It- does not appear either that the balance of the cash amount was ever paid or that any deed was ever delivered;
The appellant contends and cites cases to uphold its position that the general rule is that in the absence of any stipulation to the contrary a broker earns his commissions upon the making of a binding contract of sale. The difficulty with the appellant’s position is that the contract in suit expressly provided that sue! commissions were only’ to be credited upon shipment of the goods.
In answer to appellant’s contention that its commissions were earned by reason of the subsequent arrangement made whereby a constructive delivery of the goods was made to Mogensen by placing of the goods in storage in Chicago, it clearly appears that none of said goods were placed in storage for Mogensen, but all of them were stored by and in the name of the defendant and were to be released only by Mogensen’s eventual taking of the goods. All of the warehouse receipts were taken out in the name of the defendant Mogensen, at the suggestion of the plaintiff, to pay margins for such accommodations and storage charges, and shipment of the goods to be deferred until a later date.
The law is well settled that parties to a contract are deemed to have incorporated known usages by implication into their agreement. (Schipper v. Milton, 51 App. Div. 522.) There was no shipment of the goods in suit, with the exception of-the two carloads, and I think no equivalent of such shipment was established by the plaintiff. The plaintiff itself requested and secured an extension of time for the shipment of the goods and procured their storage in contemplation of the eventual shipment. This appears clearly from the testimony as to the transaction between Peterman, plaintiff’s vice-president and treasurer, and Finn, the agent of the defendant. It was Peterman who requested that the goods be placed in cold storage, and that suggestion was followed upon Mogensen’s agreement to pay the expenses for the same. Peter-man dictated the letter addressed to .himself or his firm and purporting to come from the defendant. - The. whole.thing and .arrangement was for the accommodation .op Mogensen,- the -purchaser. Never was any .part - of-. these goods,with..-the ysmall exception, delivered to.Mogensen, .'and on his-eventual-.-bankruptcy -he-defaulted to- the damage-, pf the-defendant.in-;over-§200,-000. No title, to. the..gopds ever, pagsed ;to.-Mpgensen. The -turning;oyer of the . warehouse, receipts--for-.the-850-boxes as collateral-security
It is finally the claim of the appellant that it is entitled to commissions on $292,965.32, said amount being made up of the cash margin of $25,000 paid by Mogensen, of the proceeds on the $92,000 note, and of $16,676.11 representing the purchase price of the two cars of pork actually shipped by the defendant. I think there is no force in the appellant’s position in this respect. The defendant lost over $200,000 in the whole transaction. None of the payments upon which the plaintiff asks commissions were procured by the plain+iff. If plaintiff’s argument were sound, then if Mogensen had abandoned his contract at the end of July, 1919, and the defendant had been forced to sell the entire 3,000 boxes of meat at a loss, plaintiff would have been entitled to commissions, not on the contract price of the meat, but on the amount realized at the sale. Such a proposition seems quite absurd.
I think the trial court properly directed a verdict for the defendant, and that the judgment entered thereon and the order denying the'motion of the plaintiff to set aside said verdict should be affirmed, with costs.
Judgment and order affirmed, with costs.