
    Vereinigte Pinsel-Fabriken, Respondent, v. John Bard Rogers, Appellant.
    ■ Contract for the sale of goods hy an agent — when the title passes to the agent.
    
    The Vereinigte Pinse.-Fabriken agreed to sell all the goods manufactured by it for the United States through Sardy, Coles & Co., and to pay the latter a commission of three and one-half per cent on the invoice value of all sales in the United States not made from stock, -whether said sales should be made by Sardy, Coles & Co. or by the Vereinigte Pinsel-Fabriken, and that “ on all sales made by Sardy, Coles & Company in their own name from stock kept by said Vereinigte Pinsel-Fabriken in the United States for their account, the Vereinigte Pinsel-Fabriken agree that said Sardy, Coles & Company shall, in addition to' said three and one-half per cent commission, deduct five percent on the invoice price of such goods.-”
    
      Held,, that when Sardy, Coles & Co. sold,' in their own name, goods from stock kept by the Vereinigte Pinsel-Fabriken, in the United States, the title to such goods vested in Sardy, Ooles & Co. as purchasers thereof from the Yereinigte Pinsel-Fabriken;
    That, this construction found additional support in a provision of the contract that “itis understood and agreed that Messrs. Sardy, Coles & Company shall" not run any risk for goods sold, except for such as they may sell in their own' name,” and in the further fact that this was the practical interpretation given to the contract by the parties themselves.
    Appeal by the defendant, John Bard Rogers, 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 11th day of December, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1899, denying •the defendant’s motion for a new trial made upon the minutes.
    
      Thaddeus D. Kenneson, for the appellant.
    
      Ira L. Bamberger, for the respondent,
   Ingraham, J.

• The action is brought to recover for goods sold and delivered, the plaintiff being a foreign corporation and the defendant a member of a firin'doing business in the city of New York, composed of himself and one John L. Sardy. An action was commenced against the members of this firm in which the summons was served upon Sardy, but not on the defendant. In that action judgment was recovered in favor of the plaintiff against Sardy for the amount claimed. Subsequently this action was commenced,'as allowed by sections 1937 and 1938 of the Code of Civil Procedure, the complaint alleging that certain goods were sold and delivered to the copartnership ; that an action had been commenced against the firm and judgment had against Sardy, but that the defendant had not been served in that action, and that the defendant in this action and Sardy were copartners. The answer admits the copartnership; denies the sale of the goods by the plaintiff to the copartnership denies knowledge or information sufficient'to form a belief as to the judgment in the former action, and alleges payment of any sum or sums due from the defendant to the plaintiff.

Upon the trial of- the action the judgment roll in the former action was offered in evidence, and there seems to have been some discussion between the counsel and the court as to the purpose for which it was offered. The judgment roll was clearly admissible under section 1933 of the Code, which provides : “ As against a defendant not summoned, it (the judgment) is evidence only of the extent of the ¡ilaintiff’s demand, after the liability of that defendant has been established by other evidence.” Counsel for the plaintiff stated: “ I also offer the judgment roll, and each paper comprising it and therein contained specifically under section 1933 of the Code as evidence of the extent of the plaintiff’s demand.” There was an objection by counsel for the defendant, but the judgment roll was admitted in evidence, and it was clearly admissible for the purpose above mentioned. There is nothing in the record to show that this judgment roll was used for any other purpose than that specified in section 1933 of the Code, and there was no request for an instruction to the jury as to the weight to be given to it, nor an exception to the charge of the judge Upon the subject. As the judgment roll was properly admitted for a specific purpose, and as it does not appear to have been used for any other purpose, there was no error that would justify a reversal of the judgment. There is no other exception to a ruling on evidence that requires notice.

The defendant also excepted to the construction given to the 3d clause of the contract between the plaintiff and Sardy, Coles & Co. By this contract the plaintiff agreed to sell all the goods it manufactured for the United States through Sardy, Coles & Co.; and by the 3d clause of the contract the plaintiff agreed to pay Sardy, Coles & Co. for their services a commission of three and one-half per cent on the invoice value of all sales in the United States not made from stock, whether said sales should be made by Sardy, Coles & Co. or by the plaintiff; and on all sales made by Sardy, Coles & Company in their own name from stock kept by said Vereinigte Pinsel-Fabriken in the United States for their account, the Vereinigfce Pinsel-Fabriken agree that said Sardy, Coles & Company shall, in addition to said three and one-half per cent commission, deduct five per cent on the invoice price of such goods.” There was thus a distinction between sales made by Sardy, Coles & Co. in their own name from stock kept by the plaintiff, and sales not made in their own name; and the contract clearly contemplated that when Sardy, Coles & Co. sold goods in their own name from stock the title to such goods was to vest in Sardy, Coles & Co., for they were to deduct from the invoice price of. such goods the additional amount"to be allowed them, viz", five per cent. This provision would be meaningless, unless it was understood that upon the sale by Sardy, Coles & Co. of goods in their own name the title of the goods was to vest in Sardy, Coles & Co., and that as to such goods they were to be purchasers -thereof from the plaintiff. This intention 'of the parties was emphasized by the 11th' clause of the con-' tract, which provides: “ It is understood and agreed that Messrs, Sardy, Coles & Company shall not run any risk for goods sold, except for such as they may sell in their own name.” For goods ' sold in their own name Sardy, Coles & Co. were to receive the price for which they were sold, regardless of the invoice price; and it is clear that the contract contemplated that the invoice price was to be the. price charged to Sardy, Coles & Co., less the three and one-half per cent commission that they were to be allowed for "all goods sold in the United States, and the five per cent which they were to deduct from such invoice price. The amount for which such goods were sold, thus belonging to Sardy, Coles & Co., the plaintiff would have no interest therein, as Sardy, Coles & Co. were to be liable for such goods as lor goods sold and delivered to them. There is nothing in the record to contradict this inference that is to be drawn from the contract' itself; and the accounts rendered by Sardy, Coles & Co. to the plaintiff quite clearly indicate that this was the practical construction that had- been placed upon the contract by the parties to it. Thus, the sale memorandums that were sent by the defendant state: “ Sales from stock on S., C. & Co.’s bills,” following a list of .each sale with the amount, and . then, at the end, “ to our debit,” total amount of the goods at the invoice price, followed by. an entry, “ Comn. on above at 8-J to our credit,” thus debiting themselves with the total amount of the goods sold and crediting themselves with the commission and the five per cent discount allowed. It also appeared that Sardy, Coles & Co. credited the plaintiff with these goods upon their books and charged directly to the.purchasers the amount of each separate sale, and that all through their books there was a distinction between goods on which they were entitled to deduct eight and a half per cent from the invoice price and the sales that were made where they were entitled to a commission of only three and á half per cent. It was also proved that when goods were sold to a customer of Sardy, Coles & Co: they were billed as sales by Sardy, Coles & Co.; but when goods were sold to a customer ,of the plaintiff they were billed in the name of the plaintiff, and, during these transactions, all moneys received by Sardy, Coles Co. for goods billed in the' name of the plaintiff Were deposited in a bank to the credit of the plaintiff, while the moneys received from goods billed in the name of Sardy, Coles & Co. were received directly by Sardy, Coles & Co., and the invoice price, less the deduction of eight and one-half per cent, accounted for to the plaintiff. It follows that the construction given to this contract upon the trial was correct and that the plaintiff was entitled to recover. There was no error that would affect this result or that would justify a reversal of the judgment.

The judgment and order appealed from are, therefore, affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson, and McLaughlin, JJ., concurred.

Judgment and Orcler affirmed, with costs.  