
    Charles Fuller, Appellant, v. Bradley Contracting Company, Respondent.
    
      Commissions—action to recover on agreement to pay commission for services in procuring contract— defense that contract was never performed and that commissions were, therefore, not payable.
    
    
      Fuller v. Bradley Contracting Co., 183 App. Div. 6, affirmed.
    (Argued June 9, 1920;
    decided September 28, 1920.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 8, 1918, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial. The action was on a contract to pay plaintiff a commission for his services in securing for defendant a contract with the Russian government for the manufacture of 1,000,000,000 cartridges at the price of $37,500,000, if such contract should be “ accepted and executed ” by defendant, such commission to be paid “ as and when ” payments were received from the Russian government, and out of amounts so received. It is undisputed that such a contract was secured by plaintiff for defendant, and that it was accepted and executed by defendant. It was, however, never performed by defendant, for the reason that the contract required that the cartridges should be manufactured at the plant of the Savage Arms Company, at Utica, N. Y., and defendant failed to secure that plant for the purpose. Plaintiff claimed that as he had performed the service for which he was promised his commission, he was entitled to recover it, notwithstanding defendant’s failure to perform the contract which he secured for it, and that his right was not, under the circumstances, defeated by the provision that his commission was to be paid “ as and when ” payments were received by defendant, and out of amounts so received. Defendant claimed that the true construction of the contract with plaintiff was that he was entitled to nothing unless the contract for manufacturing cartridges was actually performed.
    
      De Lancey Nicoll, Thomas Staples Fuller and Joseph Walker Magrauth for appellant.
    
      
      Charles E. Hughes, Frederick L. C. Keating, George Edwin Joseph and Allen S. Hubbard for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs- in all courts; no opinion.

Concur: His cock, Ch. J., Hogan, Pound, McLaughlin, Andrews and Elkus,. JJ. Not voting: Collin, J.  