Dahlman v. White Co.

132 N.Y.S. 771

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 5, 1912
• Status: Published

Opinion

SEABURY, J.

This action was brought to recover commissions alleged to have been earned under a contract of employment. The plaintiff is an automobile salesman. The defendant maintains a store for the sale of automobiles for commercial and pleasure use. The two departments are separate and distinct. The manager of the department organized for the sale of commercial automobiles employed the plaintiff. The plaintiff adduced evidence to prove that the contract of employment embraced the sale of all automobiles. The defendant adduced evidence to prove that the contract of employment was limited to the sale of commercial automobiles. Thereafter the plaintiff introduced a prospective customer, who purchased a pleasure automobile, and this action is brought to recover for the commissions alleged to have been earned by reason of such sale.

Assuming that the plaintiff’s employment embraced the sale of automobiles used for both pleasure and business, the record is barren of evidence to show that the head of the department organized to sell automobiles for commercial purposes had authority, express or implied, to make a contract covering any department other than the one he had control of. The defendant affirmatively proved that no such authority existed. In the absence of evidence to show that plaintiff was employed to effect the sale of automobiles used for pleasure, it is clear that judgment should have been rendered for the defendant.

Judgment reversed, and complaint dismissed, with costs. All concur.