
    Marshall Clapp, Respondent, v. Sophie J. Schaus and Adolph Schaus, as Executors, etc., of Hermann Schaus, Deceased, Appellants.
    (First Department,
    May 2, 1913.)
    Decedent’s Estate—Action to Recover on Oral and Written Contracts of Decedent—Evidence—Costs—Presentation of Claim to Executors.
    Action by a person engaged in selling pictures to recover commissions claimed under an alleged oral contract and also on a contract in writing subsequently made with one since deceased. Evidence examined, and held, insufficient to justify a recovery on the oral contract;
    That recovery could be had on certain sales under the written contract;
    That the plaintiff not having presented his claim to the executors, is not entitled to costs, although he presented the claim to the testator.
    Olarke and Scott, JJ.., dissented.
    Appeal by the defendants, Sophie J, Schaus and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of May, 1912, upon the verdict of a jury; also from an order entered in said clerk’s office on the 3d day of May, 1912, denying the defendants’ motion for a new trial made upon the minutes, and also from an order entered on the 21st day of May, 1912, denying the defendants’ motion to review the taxation of costs by the clerk, and to correct the judgment by striking therefrom the provision that plaintiff have execution against the defendants.
    L. Laflin Kellogg [Alfred C. Petté with him on the brief], for the appellants.
    Adam K. Stricker [H. Randolph Guggenheimer with him on the brief], for the respondent.
   Laughlin, J.

The plaintiff, who describes his business as that of a “ picture commissionaire,” selling pictures on commission, alleged two causes of action in separate counts to recover commissions aggregating $9,711.45 for selling paintings and bronzes for the decedent, Hermann Schaus, who conducted a business as a dealer in paintings and other works of art at 415 Fifth avenue, New York city, where he had on exhibition a gallery of paintings. The verdict was for the full amount of commissions claimed in each count and interest.

The first cause of action is on an alleged oral contract; and the second is based on a contract in writing subsequently made. The claim under the oral contract is for commissions on sales amounting to $104,875, made to one Burchell in the months of January and February, 1908. It is not controverted that Burchell bought the paintings and other works of art on which plaintiff claims commissions of the decedent. The answer of the appellants, however, denied that there was any contract by which the decedent wsa obligated to pay commissions; but they introduced no evidence. The learned counsel for the appellants contend with respect to the recovery on the first cause of action that the plaintiff was acting as the agent of the purchaser; that the evidence adduced to establish the oral contract with the decedent was not sufficiently clear and convineling to require the submission of the case to the jury in an action against an estate; and if it was, then that the verdict on that issue is against the weight of the evidence; and that, since an express contract to pay fixed commissions was alleged, the court erred in permitting a recovery on quantum meruit. The first cause of action is on an express contract to pay commissions of ten per centum on all sales effected by the plaintiff. There is no evidence tending to show an express agreement with respect to the amount of the commissions. The court ruled that if the plaintiff procured the purchaser under a contract of employment he could recover the reasonable value of the services rendered; and on that issue both the testimony of experts and evidence with respect to the commissions customarily paid in that line of business were received over objection and exception duly taken by defendants. The evidence was uncontroverted that the services were worth ten per centum, which was the usual commission. When this evidence was offered, counsel for defendants stated that he was not prepared to meet that issue, but he did not ask for an adjournment, and rested on the plaintiff’s case without manifesting a desire or requesting an opportunity to obtain or offer evidence in rebuttal. It is well settled that in an action on an express contract, a recovery may be had on quantum meruit (Sussdorf v. Schmidt, 55 N. Y. 319; Shirk v. Brookfield, 77 App. Div. 295; Rubin v. Cohen, 129 id. 395); and that such evidence is competent to show the value of the services, and on the theory that the parties are presumed to have had the customary rate in mind in contracting. (Walls v. Bailey, 49 N. Y. 464; Newhall v. Appleton, 114 id. 144; Reynolds v. Everett, 144 id. 193; Rickerson v. Hartford Fire Ins. Co., 149 id. 316; Underwood v. Greenwich Ins. Co., 161 id. 424; Robinson v. N. Y. & Texas Steamship Co., 63 App. Div. 217.)

Buchell informed and wrote decedent on January 22 and 27, 1908, that plaintiff was his agent in purchasing paintings; but it is evident that he did not intend to concede that plaintiff was in his employ, for he never paid plaintiff any commission, and says that he merely meant that from time to time, when he desired a painting by a certain artist, he requested the plaintiff “ to look up the best he could find by that artist.” But if plaintiff was Burchell’s agent, that fact was not concealed from the decendent, and it would not relieve his estate from paying a commission to plaintiff, if decedent promised it in consideration of plaintiff’s bringing Burchell to his store, which is all that plaintiff appears to have done in the premises, either for the decedent or for Burchell. All of the negotiations were conducted by Burchell personally in his own behalf, and for the decedent either by himself or by salesmen in the store, and plaintiff was neither vested with any discretion, concerning prices or terms of payment, by either of them, nor did he take part or participate in any manner in negotiating any of the sales, and, therefore, the rule which precludes the recovery of commissions by an agent who acts for both parties does not apply. (See Tieck v. McKenna, 115 App. Div. 703; Jarvis v. Schaefer, 105 N. Y. 289; Khauss v. K. B. Co., 142 id. 70.) The information which the decedent thus received with respect to plaintiff’s being agent for Burchell bears on the con-construction to be placed on the conversations and relations between plaintiff and decedent upon which employment of the former by the latter is predicated.

The evidence tends to show that on or about the 14th of January, 1908, plaintiff brought Burchell, who had never been there before, to decedent’s gallery and introduced him to Stollberg, the manager, who was in charge in the absence of the decedent; that they looked at some pictures casually, but Burchell did not then or thereafter purchase any of them; that-plaintiff and Burchell called again on January twentieth, and on that occasion decedent was present and exhibited pictures and other works of art and made sales to Burchell amounting to $3,250, and of the pictures exhibited at that time there were three, each painting by a different artist, and it appears that subsequently Burchell bought of decedent a picture by each of these artists aggregating $25,700, but it does not appear whether or not they were the same pictures by those artists exhibited to Burchell on January twentieth, when plaintiff was present; that they next called together February seventeenth and looked at more pictures, one of which Burchell bought February twentieth for $2,600, and a picture by Israels was exhibited at that time, and it appears that on February twenty-fifth Burchell bought a painting by Israels of decedent for $29,250, but it does not appear whether or not this was the same painting exhibited to Burchell on February twentieth, when plaintiff was present. There is no evidence that plaintiff on any occasion drew Burchell’s attention to any picture or other work of art which he subsequently purchased; and of the total purchases aggregating $104,375, on which plaintiff has recovered commissions on the first cause, of action, these which aggregate $5,850, are the only purchases of pictures and other works of art clearly shown by the evidence to have been exhibited to or even seen by Burchell on any occasion when plaintiff accompanied him to the decedent’s gallery. Burchell’s interest in the other paintings and a bronze which he purchased appears to have been aroused on other occasions when he visited the gallery alone. There is no evidence that plaintiff assisted in the least in bringing about any of these sales, otherwise than by bringing Burchell to the gallery on the occasions specified, and at various other times. Stollberg testified that when plaintiff first brought Burchell to the gallery, plaintiff said to him as they were leaving, “ I brought in Mr. Burchell and I expect to be looked after regarding commissions,” to which he replied, I will see Mr. Schaus, and Mr. Schaus will see you; ” that he informed the decedent next day that plaintiff had called with Burchell, and that he had shown them several pictures, and that plaintiff “ had mentioned regarding his commission; ® ® ® that Mr. Clapp had said to me he expected his commission,” and that the decedent said, “ That is all right,” but that he never communicated this to plaintiff. It was not shown that it was ever communicated to plaintiff, or that there was any conversation between him and decedent on the subject. Stollberg had made an affidavit with respect to this matter, from which he omitted what he testified the decedent said, and, therefore, if that fact were of importance it is doubtful whether it was satisfactorily established. But I fail to see its materiality since it was not communicated to plaintiff, or its communication to him authorized. It could not in and of itself be held to constitute an agreement with plaintiff to pay him commissions. Plaintiff’s version of this conversation is that he told Stollberg that Burchell was his customer, and that he would expect Stollberg “ to look after ” him, and that he wanted “ my commission,” and that Stollberg said “ that would be all right; ‘ I will see Mr. Schaus.’ ” Burchell had no recollection of any' conversation at that time. According to Stollberg, plaintiff and Burchell often came to the gallery when he was there, but he made none of the sales to Burchell, and nothing further was said about commissions.

By a contract in writing made on the 24th day of February, 1908, the decedent employed plaintiff for one year from March first, thereafter, to devote his entire time and energy to selling paintings and water colors on a salary and commission basis. Plaintiff worked for the decedent under that contract • during the entire year, and neither demanded nor claimed to be entitled to the commissions now sought to be recovered by the first cause of action, until after the expiration of that year. One Little, an employee of the decedent, testified that about the time the plaintiff left decedent’s employ at the expiration of the written contract, he overheard a dispute between them in which plaintiff said to decedent: “ Mr. Schaus, you owe me more commissions on pictures sold to Mr. Burchell,” to which decedent yelled out in reply, “ I paid you as much on those pictures as I am going to pay you,” and that the plaintiff then said: “ You must think I am a damn kid or you wouldn’t treat me this way.” The second cause of action is also for commissions on sales to Burchell in part, and it does not appear which commissions— whether on pictures sold before or after the employment in writing—were the subject of this discussion. The same witness, however, testified that about two months after plaintiff was employed for a year decedent asked him about the business, and upon being told that it was dull, remarked: “ It is a good thing that Clapp brought in Burchell, even if I had to pay him commissions on all sales.” Another employee of decedent testified that in the month of February, 1908, he asked for an increase in salary, and decedent stated, among other things, that he could not increase his salary much at that time “ on account of the sales made to Mr. Burchell would have to be—at least, there would be commissions paid to Mr. Clapp, being the one bringing Mr. Burchell in.” That indicates that the decedent intended to pay plaintiff some commissions, but it was not necessarily an admission of a binding agreement therefor. He may at that time have deemed it advisable from a business standpoint to do so, but have changed his mind when by the contract in writing he secured plaintiff’s services for year. Moreover, it does not appear, otherwise than by the statement itself, whether it was made before or after the employment for a year, and it may have related to that contract. The only other item of evidence tending to support the plaintiff’s claim is an entry in the decedent’s journal, made by his bookkeeper who was not called as a witness, under date of “ April,” 1908, under plaintiff’s name, as follows:

“ Commission allowed on sales as per instruction of Mr. H. Schaus, $1,600.” under which appears in pencil'in the handwriting of the bookkeeper :

“ Should have been posted as follows:

Expense account, Gratification.....$1,000.

“ Salary account........... 600. $1,600. as per verbal statement made later by Mr. Herman Schaus.”

The ledger account of plaintiff on decedent’s books contained an entry under date of April 30, 1908, of a credit to plaintiff “ By Comm. $1,600.00,” with debit items as follows:

“ 1908

Mch. 1 To Cash 163 ................. $1,000.00

30 “ “ 167 100.00

Apr. 3 - “ “ 169 200.00

13 “ “ 171 ................. 200.00

30 “ “ 174 100.00

$1,600.00 ”

Payments of these amounts were shown to have been made to plaintiff by decedent by checks on the respective dates, with the exception that the check for $1,000 is dated March 3, 1908. The decedents cash book shows an entry under plaintiff’s name, as follows: “ on account $1,000, March 2nd,” 1908. The attempt to destroy the admission contained in the original entry to the effect that the decedent was entitled to credit for $1,600 for commissions was not successful, for assuming the entry to have been made the last day of April, the decedent would not then have been indebted to him for $600 on account of salary at $50 per week from March 1, 1908. Although the decedent thus admited that he was obligated to pay plaintiff some commissions, we find therein no support for the claim for commissions on all sales that might ever be made to Burchell after plaintiff accompanied him to the decedent’s gallery, whether in plaintiff’s presence or absence, and regardless of whether he took any part in drawing the attention of the purchaser to the painting or other work of art, recommending it to him, or in the negotiations. It would require most clear and convincing evidence to establish such a contract resting in parol. The evidence in this record is not of that character, and, therefore, the recovery cannot be sustained.

The contract made February 24, 1908, provided that plain-, tiff should receive “ five per cent commission on all of his sales up to Three thousand dollars and two and one-half per cent commission on all of his sales over Three thousand dollars.” The second cause of action is for commissions at the rate of five per centum on three pictures sold to Burchell, and half commissions on three sold to a Mrs. Darden. One of the pictures which plaintiff sold to Burchell under the contract of employment in writing was not owned by the decedent, and another was returned long after the sale as the result of negotiations between him and the decedent, and in liquidation of Burchell’s indebtedness for it and other pictures and works of art. The plaintiff was entitled to commissions on unconditional sales made for the decedent regardless of ownership, and his right thereto could not be affected by a new contract under which the return of a picture was accepted. The third picture was imported to sell to Burchell, and the sale was effected by the plaintiff. The recovery of commissions on those three sales was fully warranted.

The plaintiff sold one painting to Mrs. Darden for more than $3,000 February 9, 1909. The evidence satisfactorily shows that he sold the three others, on which a recovery has been had on the second cause of action, to her at the same time, but he claimed that he sold two of ".em to her on January 9, 1909. He received the lower rate of commissions on all of these sales, and now contends that they are to be regarded as separate sales, and that on the three, each of which sold for less than $3,000 he is entitled to the higher rate. The recovery on that theory manifestly was erroneous.

We are also of opinion that the presentation of the claim to the testator did not dispense with the necessity of presenting it to the executors, if plaintiff desired to recover costs against them. (Code Civ. Proc. §§ 1835, 1836.)

The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellants to abide the event, unless the plaintiff stipulates to reduce the recovery to $622.27, the amount recovered on the second cause of action, less $134.-37, and interest thereon from said February 9, 1909, to the date of the rendition of the verdict, and if he shall so stipulate then the judgment is modified accordingly, and by striking out the costs, and affirmed, without costs.

Ingraham, P. J., and McLaughlin, J., concurred; Clarke and Scott, JJ., dissented.

Judgment and order reversed, new trial ordered, costs to appellants to abide event, unless plaintiff stipulates to reduce recovery as stated in opinion; in which event, judgment as so modified and order affirmed, without costs. Order to be settled on notice.  