150 F. 721 | 2d Cir. | 1907
The firm of Greene & Co., the predecessor of defendant, which was engaged in the business of bleaching and printing cotton goods, made a contract with the plaintiff under which the latter agreed to act as agent of said firm, for the purpose of soliciting and obtaining orders for the bleaching, dyeing, and print
The plaintiff contended that the contract was a continuing one, which the defendant had no right to terminate so long as plaintiff faithfully fulfilled the obligations which the contract imposed upon him. He sued, therefore, to recover, first, the commissions due at the time of his discharge on work done by the defendant for customers during the month of July; and, second, damages for the breach of the contract by defendant. The court ruled that the contract was not a continuing one, that either party might terminate it at will, and that there could be no recovery in damages for a breach. Inasmuch as plaintiff has not appealed, the correctness of this ruling is not disputed. The court further held that plaintiff was entitled to commissions on all the work which he actually secured for defendant, whether such work was actually done by defendant before or after his discharge; that he was entitled to show that, at the time of his discharge, there were any printing orders pending, on account of which payment would be made to the defendant upon which the plaintiff was entitled to commissions. We do not understand that the propriety of this ruling is questioned; but the defendant contends that there was no evidence upon which the jury could have found that the plaintiff was' entitled to $7,612 for commissions, or any sum in excess of about $500, which it is conceded was the amount of the commissions falling due in July before discharge. • Proper motions and exceptions reserved this point, which is. the one principally relied upon on this appeal.
The course of business was as follows: Plaintiff was informed by defendant as to what work it was prepared to do, how many yards it would expect to handle, how many varieties of patterns it would print, what lowest prices it would charge, how it would put up and send the goods, etc. He then visited the different concerns whose orders he hoped to get, told them what the defendant would do, what price it would charge (sometimes a price in excess of the minimum as given to him), and solicited them to become customers of the defendant for some definite amount of goods to be printed or for some minimum amount with right to increase to some maximum. Having found a concern, which indicated its willingness to become a customer, he then prepared what is called in the testimony a “price memo.” This was a letter addressed to the prospective customer, upon paper with the letter head of plaintiff “agent for Bleachers, Dyers, Printers & Finishers.” It gave the name of defendant as the principal who was to do the work of printing, etc. It stated the quantity, which the
The plaintiff testified, after examination of his books and memoranda, to certain orders or “price memos” which had been placed by him,- but which were unfilled at the time of his discharge. He gave a list of the concerns with whom they were placed, consisting of 15 names. Subsequently defendant’s witness, Greene, who had general management of its plant, and was familiar with its business, examined such list, and testified, as to two of the concerns mentioned in plaintiff’s list, that no business had been done with those concerns under orders placed by the plaintiff. As to the others, he testified that “all of these people have ordered work under the contracts forwarded by the plaintiff.” The various price memos were put in evidence, and it was a mere matter of calculation to determine what was the least quant
As was stated before, plaintiff set out two causes of action'in his complaint — one for commissions earned by him, the other for damages for breach of contract. In this second cause of action he set forth specifically that he had obtained orders for defendant which had not been filled at the time of his discharge, the commissions on which would amount to at least $10,800, and asked for damages generally for the breach in the sum of $50,000. This item of $10,800 was not logically a part of the damages for breach of contract, but was a part of the compensation earned by the plaintiff, and coming to him under the terms of the contract. After the verdict, the court allowed plaintiff to amend his complaint to conform to the proofs by transferring this item of $10,800 from the second to the first cause of action. Defendant contends that this was improper, and an abuse of discretion. We are of the opinion that the allowance of the amendment was entirely proper, and in furtherance of justice. Sundry exceptions to testimony are relied upon, but they need not be discussed, because, under the interpretation we have put upon the price memo, and subsequent action by the customer, the testimony objected to was legitimately introduced.
The judgment is affirmed.