
    BERNHARD METZ, Respondent v. EDWARD LUCKEMEYER, et al., Appellants.
    
      Action for compensation for service rendered by plaintiff to defendants, doing business as commission merchants, in procuring for them the business or accounts of a manufacturing firm.
    
    The ease shows that, at defendants’ request, plaintiff procured the accounts of a manufacturing firm to be placed with the defendants, and thereafter the manufacturing firm employed the plaintiff to assist in selling these goods in the name of defendants.
    At the outset the defendants had arranged that they were to receive a commission of five per cent, but after several months defendants were relieved from obligation to sell, the manufacturing firm undertaking to do that, and the defendants were to receive only four per cent as commissions. On the trial defendants claimed that plaintiff, as matter of law, could not recover for accounts placed by his influence with defendants after the second arrangement. Held, that it was a matter for the jury to determine whether or not those accounts, as well as the accounts under the second arrangement, were such as were within the contemplation of the parties at the time of the employment. The court did not err in charging the jury that taking the testimony of Mr. Shefer, in regard to employment of plaintiff, that defendants became bound to pay the plaintiff something for the rendition of his service.
    Defendants’ counsel requested the court to charge, that if the plaintiff was entitled to a compensation as distinguished from a commission, such compensation depended not upon the quantity of goods sold but upon the actual labor performed by plaintiff in the service. Held, that the refusal to so charge was correct, because the jury, in determining the value of the service, was bound to consider the value to the defendants of the benefits received by them.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided January 5, 1891.
    Appeal "by defendants from judgment entered against them on verdict of jury, and from order denying their motion for a new trial, made upon the judge’s minutes.
    
      Charles Wehle, for appellants.
    
      Horwitz & Hershfield, for respondent.
   Per Curiam.

The action was to recover compensation for services rendered by the plaintiff to the defendants, who were merchants, doing a business in the nature of the business of commission merchants, in procuring to be placed with the defendants the accounts, as they were called, of a manufacturing firm. It was explained on the trial that placing an account means that a house ships all the goods which they manufacture in a certain line. The commission house obtains the selling and does the shipping and guaranteeing and other matters connected with the management of the goods, and for this the manufacturer pays a commission, a percentage to the commission house.

The evidence showed, as the jury might find, that at defendants’ request the plaintiff procured the accounts of a manufacturing firm to be placed with the defendants. Immediately the manufacturing firm employed the plaintiff to assist in selling these goods, the selling being done in the name of the defendants. At the outset the defendants had arranged that they should receive a commission of five per cent. After several months another arrangement was made by which the defendants were relieved from obligation to sell, the manufacturing firm agreeing to do that at their own expense, and the defendants were then to receive only four per cent.

On the trial the defendants took the position that the plaintiff, as matter of law, could not recover for accounts placed with the defendants after the second arrangement. This was not correct, for it was a matter for the jury to find whether those accounts, as well as the accounts under the first arrangement, were such kind of accounts as was within the contemplation of the parties at the time of the employment.

The court did not err in charging that taking the testimony of Mr. Shefer as to the employment, the defendants became bound to pay the plaintiff something for the rendition of the service that he rendered to them. Assuming that theo mere words of Shefer as to the employment might have the meaning that there was to be no compensation if the taking of the accounts should not be of value to the defendants, yet the preponderance of evidence was that the accounts did prove to be valuable; and the court had the right in charging to consider the condition of the testimony.

There was no exception to the charge, that if there be a custom to pay the broker a commission of one per cent, then the plaintiff was entitled to such a commission.

The learned counsel for defendants asked the court to charge, that if the plaintiff was entitled to a compensation as distinguished from a commission, the compensation depended not upon the quantity of the goods sold but upon the actual labor spent by the plaintiff in the performance of the services. The court properly refused to charge this, because the jury in determining the value of the services were bound to consider the value to the defendants of the benefits received by them.

There was an original complaint in this action which was afterwards amended. On the trial the counsel for defendants offered in evidence the original complaint for the purpose of showing “ the various claims made in this action,” but the counsel said he did not offer the complaint in evidence absolutely. It was excluded. Formally the ruling wras right, for if the parties had a right to offer the complaint for a limited purpose, still the offer itself must be absolute. It could not be limited or conditional. But an examination fails to show that the single claim made in the original complaint varied from the single claim' made in the amended complaint. The latter was fuller in its statement, but a jury could not have drawn from the difference of the two complaints an inference unfavorable to plaintiff.

The question to the plaintiff of whether one of the manufacturing firm was not dissatisfied with the statement of plaintiff was excluded properly. It simply called for testimony as to mental condition.

One of the manufacturing firm, when a witness, was asked whether the plaintiff stated to him that he was entitled to commission. There was nothing in the case that made it proper that the plaintiff should make such a statement, or probable that he would make it, after he had made his arrangement with the defendants, so that an omission to make it would affect an estimation of the probability of the arrangement having been made.

The other questions argued by the counsel for defendants have been examined. None of them call for a reversal of the judgment.

Judgment and order appealed from affirmed with costs.  