
    Thomas H. Pancoast, Appellant, v. Industrial Glass Company, Respondent.
    Fourth Department,
    December 29, 1911.
    Sale — contrast construed — principal and agent — commissions — evidence — burden of proof—erroneous charge.
    Where a buyer entered an order with a manufacturer for §75,000 worth of bottles, which he agreed to take between certain dates and at a certain schedule of prices for different styles of bottles, the order on being accepted by the manufacturer created an executory contract of sale, by which the manufacturer agreed to furnish the goods at the prices stated to the amount of §75,000, and was entitled to insist that the buyer should order goods to that value within the contract term.
    Hence, where such order was procured by an agent of the manufacturer having a contract entitling him to commissions on sales procured by him, he is presumptively entitled to commissions on the full value of the order upon the expiration of the time set, and it is error for the court to charge that he is only entitled to commissions on goods actually furnished to the buyer because he failed to prove that the full amount had been delivered.
    Appeal by the plaintiff, Thomas H. Pancoast, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 24th day of April,' 1911, upon the verdict of a jury, rendered by direction of the court, awarding the defendant the amount of a counterclaim interposed by him.
    
      
      I. W. Cole [Richard E. Jacobson with him on the brief], for the appellant.
    
      George A. Davis, for the respondent.
   Robson, J.:

In July, 1907, defendant entered into a written contract with plaintiff of which the parts material on this appeal are as follows:

“Lancaster, 1ST. Y., July 5, 1907.'
“Mr. T. H. Pancoast,
“New York City: .
“ Dear Sir.—We herewith accept your proposition to represent us in Eastern markets on commission basis, viz: 5% on all sales sent us direct by you, or mailed us by the buyer in your territory; said commission to be paid as follows: 2%% when we accept order and the balance or 2%% to be paid -when bottles are shipped on order. * * * It is further understood that we have the right and privilege to refuse to accept any orders sent in by you if we find that. the buyer is not entitled to
OI*©(3.lt 'X* w -X*
(Signed) ■ EDWIN ZITRBRICK, Pres.
.“GEORGE WALTER, Secy.
“Accepted
“(Signed) T. H. Pancoast.”

The defendant’s business was the 'manufacture 'and sale of glass bottles. After making this contract ■ plaintiff secured orders for defendant’s product, which were accepted by it, and shipments were made thereon. It is conceded that such orders were furnished by plaintiff and filled by defendant, aggregating the sum of $35,489.62; that plaintiff is entitled to his full commissions thereon; and that he had been paid an excess of $387.76 above the amount of his commissions computed on that sum. This excess is the counterclaim on which defendant’s judgment for damages is based.

In the amount of sales upon which defendant concedes plaintiff is entitled to commissions are included all sales on orders which plaintiff claims he procured, except an order secured by Mm from Charles De Witt & Co. It will, therefore, be necessary to consider that transaction only, in determining this appeal. This De Witt order is in the form of a letter addressed to defendant and signed by De Witt & Co. Following the date and address the letter continues: “You will please enter our order for seventy-five thousand dollars worth of Tank Flint Bottle Ware, we to take same during the coming season beginning September and ending July 1,- 1908. Prices to be as follows: ” Then follows along list of different kinds of flasks and bottles with the price of each, after which the proposed terms of payment are stated. The written acceptance of this proposal was, before it was mailed by De Witt & Co. to. defendant, added by plaintiff “for Industrial Glass Co., Lancaster, Yew York.” Defendant accepted this proposal and duly notified plaintiff to that effect; thus, by implication at least, ratifying the written acceptance theretofore made for it by plaintiff. Prior to July 1,1908, as orders for goods were made by De Witt & Co., pursuant to this agreement, defendant filled them; and the amount of the purchase price of such goods is a part of the sum of $35,489.62, upon which, as above stated, it concedes plaintiff is entitled to his commissions. Plaintiff failed to prove, however, that any greater amount of goods than that conceded by defendant had in fact been ordered by De Witt & Co. and supplied by it prior to July 1, 1908. It, therefore, claims, and the trial court has so held, that plaintiff is entitled under his agreement to commissions only on the goods furnished DeWitt & Co. on orders of the latter made'prior to that date, which was the date, as it also insists, that ended the term of its contract with De Witt & Co. We think this conclusion of the trial court was erroneous. As we construe the contract made by defendant with De Witt & Co. it was in effect an executory contract of sale by which defendant agreed to furnish, at the prices stated in the agreement, such articles of its product named therein to the amount of $75,000, as De Witt & Co. should designate on or prior to July 1, 1908; De Witt & Co. on their part agreeing to order on or prior to that date, and accept articles of defendant’s product which should amount, at the prices stated, to that sum. DeWitt & Co. under the contract could at their option determine what articles within the contract they would order; but defendant had the right to insist that they should within the contract term order such goods to the amount of $75,000. This view as to the construetion of this contract seems to be sustained, in principle at least,. by decisions of the courts of this State. (See Kellogg v. Norman, 74 N. Y. 596; Wells v. Alexandre, 130 id. 642; Levey v. New York Central R. Co., 4 Misc. Rep. 415; affd, 144 N. Y. 649; New York Bank Note Co. v. Kings County Elev. R. Co., 37 App. Div. 460; Heisel v. Volkmann, 55 id. 607; Single Paper Co. v. Hammermill Paper Co., 96 id. 535.) It should be said, however, that none of these decisions' are exactly in point.

This contract plaintiff procured for defendant under his agreement with it. Plaintiff’s right to commissions thereon could not be defeated by any subsequent modification of the agreement made without his consent. As was said in Warren Chemical & M. Co. v. Holbrook (118 N. Y. 586, 592): When the compensation of an agent is dependent upon the success of his efforts in procuring a contract for his principal, and his subsequent performance of the work, the principal will not be permitted to stimulate his efforts with the promise of reward, and then when the contract is obtained and the compensation assured after construction, terminate the agency for the sole purpose of securing to himself the agent’s profits. At any time before there was a reasonable assurance that the contract would be obtained, the plaintiff might have terminated the agency.” In that case the agency contract was terminable at the pleasure of the principal.

So far as plaintiff’s right to commissions on this contract are concerned, unless it has been modified or limited by facts or circumstances not appearing in the record now before us, he had procured for defendant a valid executory contract of sale to De Witt & Co. of defendant’s product to the amount of $75,000, performance of which by the purchasers on or before July 1, 1908, it could insist upon. When that date arrived he was presumptively entitled to his full commissions on the order. ■ This right having been denied him by the trial court, it follows that the judgment -should be- reversed and a new trial directed, with costs of this appeal to appellant to abide event.

All concurred.

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