Poland v. Hollander

115 N.Y.S. 1042 | N.Y. Sup. Ct. | 1909

Giegerich, J".

The first cause of action, so far as it is necessary to quote therefrom, claims the amount of $4,173.00 for commissions alleged to be due “ by reason of the fact that the defendants employed the plaintiffs as their agent at the agreed rate of one per cent, commission upon the proceeds of goods shipped to or sold hy the plaintiffs as §uch agent-, and that the said goods were so shipped to and sold hy the said plaintiffs, and that the said amount has been duly demanded, and that no part thereof has been duly paid.” It should he noted that, according to the plaintiffs’ own statement of their case, their commission is based upon “ proceeds,” which, I take it, must necessarily mean amounts realized upon the goods referred to. As there is no allegation that any amount was ever realized by the defendants from such shipments or sales, the pleading is defective and the demurrer must he. sustained. For a second cause of action the plaintiffs allege that, “ being the agents for the said defendants at the times hereinafter mentioned as in the said foregoing first cause of action alleged, and herein referred to to avoid unnecessary repetition, the defendants shipped to and sold through the plaintiffs the articles set forth in schedule ‘ B,’ hereto annexed as a part of this amended complaint, at the advance therein set forth over and above the price named hy the defendants, and that the difference between the price so named and the price at which the defendants closed the same was the sum of £1,164 16s. Id., amounting to $5,-625.98, which sum was received by the said defendants, and which sum they, in accordance with the custom of the trade and in pursuance of their express agreement, promised and agreed to repay to the plaintiffs, and that, although due demand has been made therefor, no part of the same has been paid, and that the defendants remain justly indebted to the plaintiffs in the said sum of $5,625.98, with interest from December 21, 1906.” This count is also defective because of the failure to allege any consideration to support the defendants’ agreement to pay to the plaintiffs the entire amount of such excess in the price realized over and above the price named by the defendants, assuming, for the present purpose, that the word “ closed ” means that the defendants received such excess of price. It is well established that a failure to allege consideration in an action upon a contract is a demurrable defect unless the contract is one which by intendment of law imports and implies a consideration, such as a contract under seal or a bill of exchange or a promissory note. 4 Ency. PL & Pr. 928; National Citizens’ Bank v. Toplitz, 178 N. Y. 464. The allegation as to the custom of trade in this instance does not save the pleading, because there is no averment that the custom is general or uniform, or that it existed for a sufficient length of time to bind the defendants, or that the defendants dealt with a knowledge of the alleged custom. A general custom or usage, such as may be judicially noticed, may be noticed on demurrer without being alleged, but a local custom or usage of a particular trade cannot be. 1 Abb. Tr. Br. Pl. p. 697, § 365; Wallace v. Morgan, 23 Ind. 399, 403. In the latter case it was held that an allegation, that “by the usage and custom” of the particular trade in the place in question flour not suitable for market there was forwarded to New York, was bad for not stating that it was' a general or uniform custom among such merchants or had existed for any considerable period or existed at the date of the transaction in suit. Furthermore, it may be seriously questioned whether, if the pleading were sufficient in the respects indicated, a usage which would give the entire benefit of any added price realized by the agent to the agent, and nothing to the principal, would be reasonable and one which would receive the sanction of the court. It is hardly necessary to add that the general allegation of indebtedness contained in each of the causes of action is unavailing. Such an allegation is a mere conclusion, and is not admitted by the demurrer. Sampson v. Grand Rapids School Furniture Co., 55 App. Div. 163; Tate v. American Woolen Co., 114 id. 106; Allen v. Patterson, 7 N. Y. 476. The third cause of action contains, the same defects as the second, and additional ones besides, which latter it is unnecessary to discuss. The demurrers should he sustained, with costs, with leave to the plaintiff to amend upon payment of costs within twenty days after service of the decision to he entered hereon.

Demurrers sustained, with costs, with leave to plaintiffs to amend on payment of costs within twenty days after service of decision.