87 A.D. 597 | N.Y. App. Div. | 1903
The-order vacating the attachment was granted by the justice of the Supreme Court who issued it. It was -granted upon the
The allegation as to the non-residence of the defendants was clearly sufficient. (See Hayden v. Mullins, 76 App. Div. 69, 71.) But it seems to be settled that the plaintiff’s moving papers on an application for an attachment must show the existence of a good cause of action, and in this respect the papers herein are apparently defective. (See Wessels v. Boettcher, 69 Hun, 306; affd., 138 N. Y. 654; Carrier v. United Paper Co., 73 Hun, 287; MacDonald v. Manice, 65 App. Div. 610.)
The plaintiff sues for damages in the loss of prospective profits occasioned by the alleged breach on the part of the defendants of a contract by which the plaintiff was created their exclusive agent to sell their products in the State of New York. The defendants are •copartners engaged in the State of Texas in the business of selling and shipping certain produce known as “ Texas Bermuda Onions.” The plain tiff fis a commission agent in New York. The complaint alleges that in May,. 1903^ the parties entered into an agreement, by which, to quote the language of the complaint, “ defendants agreed, among other things, that the plaintiff should act as the agent of the «defendants in the State of New York, and that the plaintiff should have the sole and exclusive sale of all of defendants’ goods or produce, «consisting of ‘ Texas Bermuda Onions,’ shipped by defendants to .•said State of New York, and that if said defendants should sell any of their said goods or produce in New York by cars direct, plaintiff would be paid and allowed by defendants .brokerage on such sales; and the defendants further agreed that, in case they sold cars direct in New York, they would hold up the price of their said goods and produce in New York and would not interfere with any of the plaintiff’s trades in relation thereto, and, in consideration thereof, plaintiff agreed with defendants that he would sell in New York all the goods and produce which the defendants might ship to New York at the best market prices.” There is no suggestion in the complaint
In Martin v. Insurance Co. (148 N. Y. 117) it was held that where one was hired for an indefinite time, although at an annual rate of compensation, the employment was at will and could be terminated . at any time by either party. That decision was followed by this court in Fisher v. Sanchez & Haya Company (44 App. Div. 629). In Potter v. City of New York (59 App. Div. 70) we found an agreement for a fixed period, which took the case away from the ruling in Martin v. Insurance Co. (supra), and in Hotchkiss v. Godkin (63 App. Div. 468) the agreement was for one year’s services, to be compensated by twelve monthly installments of salary. In each case, therefore, there was a provision in the contract which clearly manifested an intention to create a fixed and definite period as the term of the employment. But in this case the defendants do not agree to employ the plaintiff as their agent, even for the current shipping season, nor does the plaintiff bind himself
The case of Wakeman v. Wheeler & Wilson Mfg. Co. (101 N. Y. 205),. cited by the learned counsel for the appellant, presents an entirely different question. There the plaintiff had fully performed a prescribed condition which entitled him under their agreement to be made the defendant’s sole agent, and the latter after receiving the benefit of, the plaintiff’s performance repudiated the contract and refused to. create Jhe agency. It was held that the plaintiff was entitled to recover the lost value of the contemplated agency as the measure of damages for the'breach of the contract. So in Bathrick v. Coffin (13 App. Div. 101) the plaintiff had rendered valuable services the full proceeds of which the defendant had received, and the defendant thereupon arbitrarily terminated the contract without requiting the plaintiff even for the work then actually done. The complaint was dismissed at the Trial Term, and it was held upon appeal that there was sufficient evidence to require submission of the question of damages to a jury.
Here, however, the plaintiff has not only been fully paid for all services actually rendered, but admits the possession of a large additional cash balance. His grievance is confined to the fact that his principals have seen fit to terminate an agency which was not created for any definite period, but under which while it was in existence he has been fully compensated in accordance with its terms.
The order should be affirmed.
Goodrich, P. J., Woodward, Jenks and Hooker, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.