Ayres v. Quigley Furniture Co. , 35 N.Y. St. Rep. 460 ( 1891 )

By the Court. — Ingraham, J.

—The complaint alleged a special contract whereby the defendant agreed to pay to the plaintiff a commission of five per cent, upon any sales which the said defendant should make by reason of the introduction by the plaintiff of one Seghers • to the defendant. The plaintiff to prove this allegation testified as follows : “I then asked him (the president of the defendant) if he would give me a commission of five per cent, if I would introduce him to this man, on all goods that he might sell through this introduction ; he said that he would.” This evidence is denied, but it was sufficient to sustain a finding of the jury that the contract as alleged in the complaint was made.

The contract thus sued on is a special contract for the payment of a certain specified amount for the performance of a certain specified service, and it thus differs from an employment of a broker to sell goods.

In such a case the law implies an obligation upon the part of a broker to procure a purchaser ready and willing to enter into the contract upon his employer’s terms, and he is not entitled to commissions until he has performed this obligation. Wylie v. Maine National Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 Ib. 378.

In this case, however, the contract, as alleged, specified the service that the plaintiff was to perform : he was not to procure a purchaser, ready to purchase the defendant’s goods, but he was to introduce the defendant to a person named, and for that service he was to have a commission of five per cent, upon all goods that the defendant should sell “ through this introduction.”

The cases cited by the respondent as to the implied obligation which a broker assumes, and which he must perform before he is entitled to commissions, do not apply to such a contract.

The plaintiff testified that he did introduce the person named to the defendant, and if the jury believed his statement they would, I think, have been justified in finding a verdict for the plaintiff for the percentage named upon the sales through the introduction.

I think, also, that the evidence would have sustained a finding of the jury that the sale that was afterwards made to the Chadbóurne Furniture Co., was made through the introduction of Seghers to the president of the defendant. Seghers after the introduction went to defendant’s factory, examined the goods, ascertained the price of certain goods of which a list was made, and delivered this list to the officers of the Hotel Company; subsequently the same goods were purchased from the defendant by the Chadbourne Furniture Co. and resold to the Hotel Company.

• Whether or not the sale of this furniture was through this introduction depended upon inferences to be drawn from these facts, and in such a case, although the evidence be uncontradicted, the question is one of fact and not of law, and for the determination of the jury.

I think, therefore, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick Ch. J., and Freedman J., concurred.