Farquhar v. Crowell

9 Daly 310

• Court: New York Court of Common Pleas
• Decided: June 7, 1880
• Status: Published

Opinion

Van Brunt, J

[After stating the facts as above.]—It is to be observed in the consideration of the only question presented upon this appeal, that the agreement entered into in December, 1863, nowhere claims to modify the agreement of May, 1868, except in one particular, and that is, that the defendant shall have no further claim for a contingent commission of 10 per cent, on the net profits provided for in the agreement of May 1, 1868. The language of the agreement of December, 1873, in reference to the other compensation which the defendant was expected to receive, was entirely in the way of a recital, which recital was not entirely correct, and the terms of the agreement of 1873 are a mere reiteration of the terms of the agreement of 1868.

It is to be observed that the agreement of 1868 is expressly ratified by the agreement of 1873, subject to the modifications stated in the agreement of 1873, and the only modification mentioned in the agreement of 1873 is that Crowell agrees to accept in full for all allowances or commission on profits the sum of £1,515 4s. 8d. It provides that Crowell shall continue to receive the balance of his commissions under the agreement of May 1, 1868.

It is therefore necessary for us to determine what construction is to be placed upon the rights of the parties to these commissions under that agreement of May 1, 1868. This agreement provides that the commissions are to be divided as follows : Croweli to receive three-fourths and Archibald one-fourth, subject to the following conditions: The first year Crowell to receive §7,500 absolutely, and if the commissions exceed that amount, then out of the excess of his three-fourths, Crowell is to pay the salary of the general agent, and Archibald is to receive his one-fourth ; the second year Crowell is to receive $8,500 absolutely, then the salary of the general agent to be paid out of any excess of Crowell’s three-fourths share, and the third year Crowell is to receive absolutely $10,000, the salary of the general agent to be paid out of the excess of his three-fourths proportion.

Thus the whole language of the agreement is that 'three-fourths shall belong to Crowell and one-fourth of the commission belongs to Archibald, and that Crowell agrees in case his three-fourths of the commissions amount to over $10,000 a year, that he will devote the excess so far as may be necessary to the payment of the salary of a general agent.

„ There is no intimation that any part of these three-fourths of the commissions should in any event be considered as the property of the company.

It would undoubtedly have been Crowell’s duty to appoint such an officer if necessary, but there is no clause in the agreement which requires him to employ any person at any given salary to perform the duties of a general agent. It is true that the words “ to the extent of three thousand dollars to be applied in payment of the salary of a general agent,” are used in respect to the salary of the general agent for the first year; but it is somewhat significant that the salary of the general agent is nowhere subsequently mentioned or referred to in connection with the second, third and subsequent years. It would seem to indicate that even if it was necessary to pay a general agent more than $3,000 for the second, third and subsequent years and Mr. Crowell’s excess amounted to sufficient to pay such increased salary, that he would have been required to pay it, if such agent was employed. The converse ¡proposition would seem equally true. If Mr. Crowell could acquire the seiwices of a general agent competent to perform the duties belonging to that position at a lower rate than $3,000, there is nothing in the agreement which prohibits him from making such employment, and as a consequence, if the services of a general agent in consequence of the loss of business could become entirely unnecessary I can see no requirement for such employment by Mr. Crowell. The evidence of the want of any necessity for such employment was excluded.

It would seem to have been Mr. Crowell’s duty to show that there was no reason -for the continuation of the employment of such general agent, and that all the work which he could have done was satisfactorily done by the defendant himself.

Under such circumstances it does not appear that the defendant was called upon to pay out of his commissions the salary of a useless employe.

It is true that a different view may be taken of this agreement, but I can not conceive how the company could in any event claim any portion of the commissions which are stated distinctly to be defendant’s, and the defendant has received during the time covered by the complaint no more than his three-fourths commission provided for in the agreement.

I cannot, therefore, concur in the construction of this agreement which has been placed upon it by the learned judge below, and think that if the defendant Crowell had shown upon the trial that in consequence of the decrease of business, there was no necessity for the employment of a general agent, and that all the duties which could have been performed by such general agent were performed by himself without detriment to the business of the company, the defendant should have been entitled to judgment.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Larremore, J., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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The order entered on this decision was affirmed by the court of ap peals, and judgment absolute ordered for the defendant, January 17th, 1882.