
    William Middleton, Respondent, v. William Wohlgemuth, Appellant.
    Second Department,
    December 30, 1910.
    Party — action by agent in.his own name — sale — evidence — check and receipt for part payment.
    An agent selling goods upon commission may maintain, in his own name an ■ action to recover the purchase price of goods sold by him for his principal as trustee, of an express trust under section 449 of the Code of Civil Procedure.
    Where an agent who deducted the amount of his commission from the purchase price of goods sold by him in consideration of the purchaser’s agreement to . procure other sales for the agent within a definite period, or to pay the full price, brings an action to recover the amount of his commission, a check drawn by the purchaser to the order of the principal representing the' first payment and indorsed by the principal and by the agent and a receipt for the money are not conclusive evidence barring a recovery.
    Appeal by the defendant, William-Wohlgemuth, from a judgment of the. Municipal Court of the city of New York, borough of Brooklyn, in favor of, the plaintiff, rendered on the 20th day of May, ,1910. - -
    
      John P. Ladner din, for the appellant:
    
      PEenry Bonawiiz, for the respondent.
   Jenks, J.:

This is an appeal from a.judgment of the Municipal Court. The plaintiff "sues for $140. He was the agent of a motor car manufacturer,. entitled to a fixed commission on" the sale of "each car. He sold a motor car. to the defendant. The regular price of.it was .$740, but he accepted $600 on the express agreement that, the defendant would sell for him two. motor cars within a definite period, and if not, then the défendant would pay $740. The- said regular price included the fixed commission of the plaintiff, which was $140. The action in effect, then, is to recover the full price, .of the car in order that the plaintiff may gain the commission which was due to him thereon by his agreement with his principal, and which the defendant in effect agreed to pay provided he did not carry out his said agreement. The defense is a general denial, together with a plea of misjoinder of parties plaintiff, defective parties plaintiff, no capacity to sue and failure to state facts sufficient to constitute a cause of action, all.of which résts upon the proposition that the plaintiff was an agent. In the course of the trial the plaintiff testifies directly that he sued as agent. I think this action can be maintained upon the theory that the plaintiff is the trustee of an express trust under section 449 of the Code of Civil Procedure. I think we may glean from the complaint- that such is the- theoiy of the action, and this was expressly avowed by the plaintiff in his testimony. In Stanley v. Chappell (8 Cow. 235) it was held that when the plaintiff declares in a special character, beginning his declaration by showing that character, he may in subsequent parts of .the declaration refer to himself-as the said plaintiff without adding his special character. Whether or not the contract was made and carried out with the plaintiff or with the defendant was a question of fact, in the case on which the finding of the court should not be disturbed. The written exhibits of the defendant are not conclusive inasmuch as, although the check which represents the first payment was made out to the principal,, examination shows that it was indorsed by the principal and subsequently indorsed by the plaintiff, and the receipt is nothing more than a formal statement that an amount of money had been received by the principal, the disposition of which was indicated by the said check. •

The judgment is affirmed, with costs.

Burr, Thomas, High and Carr, J J., concurred.

Judgment of the Municipal Court affirmed, with costs.  