26 N.Y.S. 700 | N.Y. Sup. Ct. | 1893
We agree with the trial judge that there was an account stated between the plaintiff’s firm and defendants; thereafter a payment by defendants to plaintiff of the amount which such account showed to be due; and that a dismissal of the complaint was necessarily required. The defendants were carpet manufacturers in the city of Philadelphia. Plaintiff was one of a firm of commission agents for the sale of carpets in the city of New York, and has succeeded to the interests of the firm in the claims which are the subject of this action. About the 1st of December, 1887, an agreement was entered into between the parties, by which plaintiff’s firm became defendants’ agents for the sale of Wilton and Body Brussels carpets; the commission agreed upon being 3 per cent, for all sales made at the standard price of . the season for such goods, while, for goods sold at less than the standard price, it provided for a commission of 1| per cent., the term of the agreement to continue as long as mutually agreeable. Plaintiff’s firm continued to sell goods as the agent of defendants until November, 1890, and the first cause of action alleged is for the balance of commissions which plaintiff claims to be due and unpaid on account of goods sold between the 1st days of December, 1889, and November, 1890. He alleges that he has been allowed and paid only 2 per cent, commissions on goods sold at standard prices during that period, while he was entitled to 3, and it is the sum which 1 per cent, on the gross sales would produce that he claims to recover under the first cause of action. Defendants’ position was that the agreement had been modified or abrogated, and, by the amended or substituted agreement, plaintiff’s firm were to receive but 2 per cent., the amount of which had been paid prior to the commencement of this action; that, after the change in the agreement touching the amount of the commissions, the defendants sent monthly statements to the plaintiff’s firm, covering all the business transactions between, the parties, in
A cursory examination of the dealings between the parties during the period embraced in the alleged first cause of action will make it apparent that this is not a case in which regret should be occasioned because of the necessity of applying the rule of an account stated. The plaintiff’s firm had full notice of the defendant’s determination not to pay them but 2 per cent, in advance of the .performance on their part of nearly, if not quite, all the work for which they claim not to have been fully compensated, if indeed they did not fully assent to it. As has already been observed, the contract expressly provides: “This agreement to continue in full force and effect so long as mutually agreeable.” Thus, by its terms, either party had a right to terminate the agreement at will. In December, 1889, defendants wrote plaintiff’s firm that they would not put their price down to 87½ cents a yard, but where there was a large trade, and plaintiff’s firm chose to take a 2 per cent, commission, they could sell at 90 cents, with a rebate of 2½ per cent, off; in substance, that they declined to sell at 87 and pay 3 per cent, commission. The sales which are the subject of the first cause of action are all made to four firms, to three of which the sales were made at 87½, while to the other firm the sale was at 90, with a rebate of 2½ per. cent. The plaintiff replied by letter dated January 10, 1890, in which he said:
“You wrote me that you would allow us two per cent, at eighty-seven and one-half. We are willing to do the Claflin, Kennard and Artman on that basis for this season, but, further than that, I, speaking for myself, will not go, and I think Fred feels as I do. I shall let their trade go. * * * It is for you to decide if we are to take orders as others are doing, or let them pass.”
It thus appears that there was a complete meeting of the minds of the parties as to the amount of commissions to be paid on sales to three parties named, and as to other sales there was an assertion by the defendants that they would not pay over 2 per cent, commissions, and a statement on the part of the plaintiff that he should let the other trade go. Thereafter plaintiff’s firm continued to sell defendants’ goods to the three firms which they had expressly consented to sell to for a commission of 2 per cent., and to another firm, which they did not mention in their letter of consent. Defendants monthly prepared and sent to the plaintiff’s firm a statement showing the entire sales made for the month, and the commissions of plaintiff’s firm thereon, on the basis of 2 per cent. The statements were received by plaintiff’s firm in due course of mail, and by them produced on the trial, in compliance with defendants’ notice to do so. Payments were made from time to time,
“Please send us a check for $2,000, which will be a small advance. It will fake that to start us out. As near as I can tell, there is between $1,000 and $1,700 due us.”
Referring to the statements of account for the month of May, it appears that plaintiff’s commissions for April and May amounted to $2,770.17. These commissions were 2 per cent, of gross sales, including sales to Bauman Bros. And, further, that, upon the 26th of May, the plaintiff received from the defendants $1,000, leaving due him, according to the statement, a balance of $1,770, a little more than plaintiff’s estimate. Whether he objected to the accounts of February or March or not, he was concluded by the statement of account furnished on July 9th, to which he did not object, but, on the contrary, received payment of the balance shown to be due him; for that statement of account superseded those rendered before, and his acceptance of payment without objection amounted to an assent on his part, and made the accounts between them stated at that date. Clark v. Bank, 11 Daly, 239; Quincey v. White, 63 N. Y. 370; Knickerbocker v. Gould, 115 N. Y. 533, 22 N. E. 573; Jugla v. Trouttet, 120 N. Y. 21, 23 N. E. 1066. After the July statement, the defendants continued to render monthly statements down to November following, after which plaintiff was paid the amount appearing to be due to him by the last statement. He made no objection when he received it, nor did he object when the money was paid to him, nor at any time thereafter, so far as the record discloses, until the commencement of this action, in February, 1891.
The second cause of action was a claim for commissions upon goods sold to Deimel Bros., of Chicago, amounting to $5,986.25, in December, 1889. Deimel Bros, became insolvent immediately after the sale, and no part of the purchase price was paid. Plaintiff claims that, under the contract, he was entitled to his commissions, notwithstanding the sale which he made was to a failing firm, by reason,of which his principal lost the entire amount of the purchase