Brower v. Kennard

126 N.Y.S. 101

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 8, 1910
• Status: Published

Opinion

GAVEGAN, J.

The complaint alleges that- the defendant employed plaintiff “as an agent to obtain and assist in obtaining orders for the sale of automobile trucks,” and agreed to pay the plaintiff a commission on the selling price of all automobile trucks “sold by this plaintiff, or sold through the efforts of or introductions obtained by this plaintiff”; that thereafter defendant, through plaintiff’s introduction, “did sell to Burns Bros., and Burns Bros, purchased from this defendant, an automobile truck, the selling price of which was $5,000.”

The plaintiff, therefore, does not seek in his complaint to recover for having produced a purchaser who was ready, able, and willing to purchase on the terms theretofore stated by the defendant to the plaintiff, or for the obtaining of an order for a truck, but alleges an actual sale of a truck and an agreement to pay him only for actual sales. The evidence shows that, while a conditional order was given to the defendant by Burns Bros, for a truck, the conditions, in connection with the preparation of specifications, were never fulfilled, and there never was an actual sale of a truck by the defendant to Burns Bros, through the plaintiff’s efforts or introduction.

There was not sufficient evidence to sustain the verdict, and the judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.