
    Gilbert v. Quinlan.
    
      (Supreme Court, General Term, First Department.
    
    March 13, 1891.)
    L Contract—Construction—Rescission.
    Defendant, a broker, agreed to pay plaintiff half his commissions on the business of customers whom plaintiff should bring him. By a subsequent change in the rules of the board of brokers to which defendant belonged, the payment by him of such commissions to plaintiff was prohibited. Held, that the contract might be terminated, after the lapse of a reasonable time, for a good reason, and on proper notice; that such change in the rules of the board was sufficient reason for a termination of the contract; and that, on dealings after such termination with a customer introduced by plaintiff, defendant was not liable to plaintiff for commissions.
    2. Same—Notice of Termination.
    On the question whether notice to terminate the contract was given by defendant to plaintiff, defendant and two witnesses testified that such notice was given, and the fact was, in effect, admitted by plaintiff on cross-examination, although he denied that defendant’s witnesses were present at the conversation sworn to by them. Held, that a finding by the jury that such notice was not given could not be sustained.
    Appeal from circuit court, New York county.
    Action by Henry O. Gilbert against Leonard G. Quinlan. Defendant appeals from a judgmentfor plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.
    . Argued before Van Brunt, P. J„ and Daniels, J.
    ■ Hatch & Warren, for appellant. William, W. Niles, for respondent.
   Van Brunt, P. J.

This action was brought to recover .for services in procuring customers for the defendant, who was a stock and grain broker, which the plaintiff alleges he became entitled to by procuring a customer for defendant by the name of Miner. The contract sworn to by the plaintiff was that defendant agreed to give him half commissions for all the custom that • the plaintiff brought him. There was a question in the case as to whether this one-half applied to the total amount of the commissions upon the transactions, or only to the amount of the commissions actually received by the defendant, which question was resolved by the jury in favor of defendant. It is conceded that Mr. Miner was first introduced to the defendant by the plaintiff, and that his transactions through the defendant were to a considerable amount; and the jury found that the plaintiff was entitled to commissions received upon the whole of these transactions. It was sought to be proved by the defendant that by reason of a change in the rules of the board of trade of Chicago he could not pay commissions to the plaintiff upon these transactions in the then future, and that he notified the plaintiff of the termination of their agreement, and that all the transactions with Miner which formed the basis of the subject-matter of this action took place after such notification. The fact that he gave the plaintiff such notification was corroborated by disinterested witnesses, and is indeed admitted by the plaintiff. He says upon cross-examination, in answer to the question, “Can you tell anything that was said about Miner, and your business relations, in that conversation?” [referring to a conversation had between the plaintiff and the defendant in regard to the change of rates made by the board of trade:] “Nothing, except that ! told Mr. Quinlan that Miner was trading there, and of course that he had to keep on paying me the same as he had done; that I should not stand it unless he did. I brought the customer, there, and, after he got fairly settled, he did not want to.pay me any more.” He said further: “It came up between myself and Quinlan that he did not want to pay me any . commissions.” This evidence clearly shows that conversations, substantially as claimed by defendant in regard to the payment of commissions, did come up, and that defendant had' notified the plaintiff that he would not pay .him any more commissions in consequence of the change of rules made by the board of trade, sworn to by the defendant and two of his witnesses.

In the submission of the case to the jury, the court instructed the jury that this contract was one which could not last forever. It was one that was terminable at the election or option of either party; that it would have been proper for the plaintiff at any time to have taken his customer to another broker, and it was entirely competent for the broker at any time, on giving reasonable notice, to have said to him: “The relation which existed heretofore between Miner, your customer, and myself is now severed, and hereafter it is terminated.” There was no exception to this charge, but the court was requested by plaintiff to charge that in a contract like that, if they find the agreement was to pay half the commissions on that customer’s trade, they must stop trading with the customer, so he will be turned back, or else they must have the plaintiff assent to the termination of the contract,—one or the other. This the court declined to charge, and an exception was taken. The jury found a verdict in favor of the plaintiff, and from the judgment thereupon entered, and from the order denying motion for new trial, on the ground, among others,- that the verdict was contrary to the evidence, this appeal is taken.

It is clear upon an examination of the evidence in this case that, if the instruction of the court in reference to the terminable character of the contract was correct, the verdict is against the evidence. The only question submitted to the jury, outside of the question as to the amount of the commissions, was as to whether the notice of termination of the contract claimed by the defendant had been given. That such notice was given was testified to distinctly by the defendant and two witnesses, and their evidence was in no respect shaken. That such notice was given seems to be conceded by the testimony of the plaintiff, given upon cross-examination, as above stated. It is true he says that at this conversation neither of the two witnesses who were examined on behalf of defendant were present. But the language of the plaintiff is entirely inconsistent with the idea that such notice was not given. He says, that the defendant had to keep on paying him the same as he had done, anti he should not stand it unless he did; and, in another place, that the subject, came up between himself and the defendant that he did not want to pay him-any commissions; and, in another place, that there was not any one present when Quinlan told him that he would not pay him any more commissions. And in answer to the question, “How many times did he tell you he would not pay?” he answered: “He told me once. I do not recollect him telling: me any more.” This was a clear corroboration of the testimony of the defendant and his witnesses that this conversation did take place, and that this, notice was given. There was no evidence whatever contradicting in any material particulars the evidence of the notification, and the jury should have-found in favor of the defense upon that issue.

There is only one other point to be considered, and that is whether, upon-the whole case, as matter of law, the plaintiff was entitled to the direction of: a verdict for the amount for which the jury rendered their verdict. That depends upon whether the request to charge, which has been adverted to, was-correct, and that it was error to refuse it. We do not think that a contract; of the kind mentioned mortgages a customer forever. It is true that such ai contract cannot be terminated at once, but only after the lapse of a reasonable time, and for a good motive. But the simple notification of the cancellation of such a contract does not prevent the having of dealings by a party with that customer at some subsequent time, without being liable to the payment of commissions to the introducer. Good faith must be at the foundation of the action of the party seeking to terminate the contract. He cannot terminate the contract merely for the purpose of getting rid of the payment of commissions. But where a good reason arises, and proper notice is given, the contract may be terminated. The agent, if he chooses, may take his customer elsewhere, if he has sufficient control over him so to do, which it would appear in this case from the evidence that he did not have. The cases cited upon the part of the appellant,—namely, Briggs v. Rowe, *43 N. Y. 426;. Briggs v. Boyd, 56 N. Y. 291; Sibbald v. Iron Co., 83 N. Y. 378; and Wylie v. Bank, 61 N. Y. 415,—have no application whatever to the case at bar; they all being cases in respect to employment for particular services which had not been accomplished by the broker.

Upon the whole case, we are of the opinion that the verdict was against the weight of evidence, and that the order denying the motion for a new trial should be reversed upon that ground, that the judgment should also be reversed upon payment by the appellant of the costs of the trial, and that a new trial should be ordered, with costs to appellant to abide the event.  