
    Marshall E. Ward, Respondent, v. Paul J. Rainey Pier Company, Appellant.
    First Department,
    March 22, 1912.
    Principal and agent — action for commissions upon sale of bonds — evidence.
    In an action by an agent to recover commissions alleged to have been earned in effecting the sale of bonds, the defendant claimed that plaintiff deceived the purchaser and misrepresented the facts for which defendant had to make settlement. Evidence examined, and held, that plaintiff failed to establish a cause of action.
    Appeal by the defendant, Paul J. Rainey Pier Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Hew York on the 19th day of April, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Samuel S. Whitehouse, for the appellant.
    
      Harford T. Marshall, for the respondent.
   Clarke, J.:

The complaint alleged that on or about the 15th day of September, 1909, plaintiff and defendant entered into an agreement whereby defendant agreed to employ the plaintiff as agent to sell its first mortgage, six per cent gold bonds and pay plaintiff a commission of ten per cent of the purchase price of all bonds sold by him as payment for his services in negotiating said sales.

The answer admitted the employment, but alleges that it agreed to pay him for his services ten per Cent of the moneys which the defendant should receive on account of the purchase price of all such bonds actually sold by him.” And further alleges that the alleged sale of $30,000 of such bonds to Mary Reilly was not an actual bona fide and binding sale of such bonds to her; that said alleged sale of such bonds to her was never completed in whole or in part and was not and is not enforcible against her.

Plaintiff, who had formerly been in the employ of the Title Guarantee and Trust Company, but had left its employ a year prior to the transactions here under consideration, testified: “I was to receive ten per cent as my commission for the sale and my commission was to be paid to me at the time of the money being turned over to the Paul J. Rainey Pier Company or to him,” referring to Mr. De Saulles, the vice-president and subsequent president of the company. Plaintiff claims to have sold $40,000 worth of these bonds and admits that he has received $2,000 byway of commission and sues for the balance, namely, $2,000.

The transaction under consideration was the alleged sale of $30,000 of bonds to Miss Mary Reilly. Miss Reilly sent $30,000 in checks to the order of the Title Guarantee and Trust Company. She subsequently brought suit for the recovery of this amount and the defendant company in settlement of her claim against it paid her $2,000 in cash and $685 by way of interest and gave her a note for $28,000 with a large amount of stock collateral.

The defense to the suit at bar was that plaintiff deceived Miss Reilly and misrepresented the facts to her; that while she thought she was buying a bond guaranteed by the Title Guarantee and Trust Company, said company was only the trustee of the mortgage securing said bonds and that when she discovered the facts she brought the suit which resulted in the settlement above set forth.

Miss Reilly testified that she was dealing with the plaintiff as the representative of the Title Guarantee and Trust Company; that she had had guaranteed mortgages of that company before; that she was a dressmaker; that she had saved this amount of money and desired to invest it in the same kind of guaranteed mortgages; that she asked for five per cent mortgages and that the plaintiff told her that the company did not have any that paid that amount, but that he had these bonds of the Paul J. Rainey Pier Company which were six per cent bonds and which were just as safe as the mortgages she desired; that they were guaranteed by the Title Guarantee and Trust Company and that if anything was safe that company was; that he told her that his mother had invested §25,000 in them; that all of these bonds had been sold and that the First or Second National Bank of Brooklyn had subscribed for §125,000 of them. As matter of fact none of the bonds had been sold or subscribed for. This was the first transaction in them and they were not delivered until some time after the money had been paid because they were not ready for delivery. Neither Ward’s mother nor the Brooklyn bank referred to had invested in any of these bonds.

It further appeared that under the subscription agreement a stock bonus to the extent of fifty per cent of the bonds subscribed for was to be delivered with them. Miss Reilly was told nothing of this stock bonus but De Saulles and the plaintiff agreed to divide the stock which was to be delivered as a bonus upon these bonds between themselves.

Upon the facts proved no cause of action was established against the defendant and the verdict was against the evidence.

It follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs and disbursements to the appellant to abide the event.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  