
    George Moore, Resp't, v. The Brooklyn Advertising Co., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Contract—Variation.
    A contract of employment to obtain advertising for three years specified the rates for the services very definitely and provided for a settlement every six months. In an action at the end of the term for an alleged balance claimed to be due, the defendant claimed that plaintiff had accepted in some cases a change of rules as between the rates and .in others had made special rates, which plaintiff denied, and on other points the parties varied, the plaintiff being sustained by the written contract and the defendant’s president by the two bookkeepers. Held, that a judgment in favor of plaintiff should not be disturbed; that the writing should be upheld when the variation of its terms is not fully proven.
    Appeal from judgment in favor of plaintiff, entered on report of a referee.
    Action to recover a balance alleged to be due the plaintiff as commissions for services in procuring advertising contracts for defendant.
    
      Gaynor, Grout & DeFere, for app'lt; Charles H. Otis, for resp't.
   Barnard, P. J.

On the 17th clay of August, 1888, the defendant entered into a written agreement with the plaintiff to employ him for three years in soliciting and obtaining advertising business for the defendant. The plaintiff was to give his entire and exclusive time and his best efforts to increase the defendant’s business. The rates for the services were fixed. Fifteen per cent was to be paid plaintiff for all business secured by the defendant which was closed by the plaintiff, and ten per cent on all business closed by outside agents. Fifty per cent of the commissions was to be left to cover defaulting or void contracts, but there was to be a settlement every six months. If $20,000 in advertising was not put in the first year, the defendant had the right to cancel the contract. The proof shows that the plaintiff continued in the employment for the three years ; and that $20,000 was put in the first year. The parties differed widely as to the facts. The plaintiff gave evidence tending to show that he was entitled to recover over and above payments the sum of $8,766. The items which were involved in the examination were very numerous and the same were scrutinized before the referee, item by item. The defendant pleaded payment and gave evidence tending to show that the dealings between the parties were all entered on a blotter and were settled at short intervals. That the plaintiff accepted in some cases a change of rules as between the ten and fifteen per cent in the contract; and in others made special rates different from those named in the contract. The plaintiff denied this wholly. He testified that the account was kept on a blotter, but that the contract as'to rates and as to what was due the plaintiff was a subject of contest and dispute from the very commencement until the end of the employment. The referee heard the oath of the plaintiff and the writing on one side and the testimony of the defendant’s president and of the two bookkeepers on the other. On these questions of fixing rates and of settlement, he has found for the plaintiff. There was a question whether the plaintiff was to be paid for business closed by one William Bogers. The plaintiff and the defendant were at variance as to the fact, and the referee has decided in favor of the plaintiff. There should be no reversal upon appeal from the findings of the referee upon questions of fact when the evidence is so strong in favor of the finding. The contract was sure in its terms. A variation requires strong prdof of the fact. The writing should be upheld when the variation of its terms is not fully proven. The plaintiff bad a second cause of action in his complaint. One "William P. Blinden, an agent of the defendant, obtained a contract from the Coster Medicine Company for advertising by defendant for five years, at the rate of $510. per year. The plaintiff is the assignee of this agent. Flinden was entitled to be paid ten per cent for procuring this contract, only a part of which had been paid. The findings include this balance as due the plaintiff under the assignment, being $102.

The case shows no revocable error committed upon the trial, and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  