Tanenbaum v. Levy

82 N.Y.S. 171 | N.Y. App. Div. | 1903

O’Brien, J.:

This is an action to recover damages for breach of a written agreement made in February, 1898, between the firm of I. Tanenbaum Sons & Co., insurance brokers, then composed of plaintiff and Samuel L. Bear, and the defendants, who were doing business under the firm name of A. & M. Levy. Shortly after the contract was made, Bear retired from the firm, assigning all his rights to the plaintiff. The agreement in form was similar to that involved in Tanenbaum v. Greenwald (67 App. Div. 473) and the frequency with which these contracts made by the firm of I. Tanenbaum Sons & Co. with their customers have been before this court and the many questions relating to them which have been litigated, renders it unnecessary for us to more than state briefly our conclusions upon the record before us.

With respect to the rulings made upon the measure of damages, the character of the evidence admitted in support of the claim for damages, the refusal to dismiss the complaint upon the ground that the contract was not assignable and that upon the retirement of Bear from the Tanenbaum firm the defendants’ obligation to continue the agency with the plaintiff ceased, and to the other questions which have been urged on the appellants’ brief, we think, with one exception, that all were properly disposed of by the learned trial judge. This one exception relates to the allowance to the plaintiff of $705.68 commissions upon the amount of insurance on the Patterson property.

The plaintiff based his right to receive these commissions upon the 5th clause of the contract which provides that “ the said parties of the first part shall procure for the parties of the second part all other and floating casualty and additional insurance which they may require upon any and all property required to be or which may be insured by the parties of the second part contained and located outside of the premises specifically named hereinbefore at current tariff rates of insurance.” It will thus be seen that plaintiff’s right to such commissions depends upon the construction to be given to the words “ located outside of the premises specifically named hereinbefore.” Did these words give the plaintiff the right to effect insurance on all the property of the defendants wherever situated within or without the State %

Reading the entire contract to ascertain the intent of the parties as to the meaning which they gave to the words employed in the agreement, we think that either view can be taken, viz., that it was intended thereby to refer to other property within this jurisdiction, or that the contract was not necessarily restricted by any such limitation. We think that the words were open to explanation because ambiguous and doubtful. Under such circumstances the construction which the plaintiff himself placed upon the language used is important, and in this connection the letter written by him after the contract was made, and in which lié sought to obtain the right to •effect insurance upon the Patterson property, would indicate that his view at that time was that he had no such right under the contract. So, too, we have the testimony of Hr. Bear, who knew of the •existence of the Patterson property at the time the agreement was executed, that the inclusion of _ such property was never contemplated. We do not think that the plaintiff’s letter nor this evidence, received and subsequently ruled out, tended to vary or contradict the contract, but rather was in explanation of a clause, the meaning •of which at best was doubtful. This evidence, which should have been admitted, made it a question for the jury. Having, however, been stricken out, the defendant is entitled, in the absence of any evidence to the contrary, to the benefit of the inference that it was not intended by the parties to include the Patterson property.

Thinking as we do, therefore, that it was error to strike out this evidence and to direct a verdict for commissions upon this property, it follows that such amount should be deducted from the verdict, and, unless the plaintiff will so stipulate, the -judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event; otherwise, upon plaintiff giving the stipulation, the judgment should be modified in this respect, and as so modified should, together with the order appealed from, be affirmed, without costs.

Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, J J., concurred.

Upon plaintiff stipulating, as stated in opinion, judgment as modified in accordance therewith, and order affirmed, without costs; if such stipulation be not given, judgment and order reversed and new trial ordered, with costs to appellants to abide event.