Searle v. Halstead & Co.

115 N.Y.S. 405 | N.Y. App. Div. | 1909

Clarke, J.:

The defendant moved at Special Term for judgment on the pleadings under section 547 of the Code of Civil Procedure. The complaint alleges that prior to May 5, 1903, the plaintiff had been - engaged in the sale of various brands of lard for. many years and had originated and'created the name of “Verifine” to be applied to various lard products, and that part of the consideration for the contract set up in the complaint was the use by the defendant' of that brand. Said contract was in writing, dated May 5, 1903, between the plaintiff and the defendant. The defendant wrote : “ We hereby engage you to sell lard for us under the following conditions: We will furnish the brand ‘ Verifine for compound lard, for pure lard and for shortening, to be- sold to. the consuming trade and to jobbers to whom we do not now sell. We are to be at liberty to furnish this brand to jobbers to whom we are now selling if they call for it; such sales to be subject to a commission of -Jc per lb. for yon.” Then follow provisions as to commissions upon sales to be made by the-plaintiff, not here in issue, and the writing proceeded : “ This agreement to be binding for a term of at least three (3) years.” The complaint alleges that the defendant has since the 5th day of May, 1903, sold millions of pounds of lard branded with the name “ Verifine ” to jobbers to whom they were then selling and who called for said, lard branded with the name “Verifine” for which they have never accounted to the plaintiff, and for which they have never paid the plaintiff any commission whatever, and that they have sold this lard so branded with the name “Verifine” to a great many customers (naming some of them), and that the sales to these various customers exceeded millions of pounds of lard branded with the aforesaid name of “Verifine,” and that on each and every said sale the plaintiff, in and by virtue of the terms of said contract, was entitled to a commission of - one-eighth of one cent per pound on each sale; and upon information- and belief that said commission on said sales would amount to upward of $30,000; that the contract was terminated on or about the 15th day of December, 1907; that on or about the 15th day of January, 1908, the plaintiff demanded that the defendant account and pay to him Ids commission or brokerage on the sale of lard branded “ Verifine ” and mentioned above, but that the defendant has failed and neglected to account to him for any of said commissions, and that no part thereof has been paid ; that by reason of the foregoing facts the defendant became indebted to the plaintiff in the sum of $30,000, for which he asked judgment.

Heading the contract and the allegations of the complaint together, the plaintiff sues for commissions alleged to be due him in and by virtue of the terms of the contract for sales made between the 5th day of May, 1903, and the 15th day of December, 1907, when the contract terminated.

The defendant answered, setting up a counterclaim, and the plaintiff replied thereto, and thereafter defendant made this motion for judgment on the pleadings dismissing the complaint upon the ground that the same does not state facts sufficient to constitute a cause of action, which was granted, the memorandum of the Special Term stating: “ For aught that appears, the sales referred to in the complaint may have been made after the right to commissions had expired.”

We do not agree with that view of the complaint, but think that it specifically alleges sales and commissions due thereon, during the life of the contract, and the recovery sought is limited thereto.

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.