
    James Darling, Resp’t, v. Henry C. Albert et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 4, 1892.)
    
    Master and servant—Commission on sales—Counterclaim.
    In an action for commission on orders taken for defendants, the latter counterclaimed for damages incurred by plaintiff, failing to take certain, orders subject to change in tariff, according to his instructions. Plaintiff sent memoranda of the orders to defendants, who accepted them and. wrote the condition thereon, to which the purchasers objected and offered to return the goods. Held, that the orders sent to defendants were not binding on them because signed by no one, and if in their opinion it was. better to sell the goods although the purchaser declined to pay the increased duties, plaintiff was not responsible for their determination, and that the counterclaim was properly disallowed.
    Appeal from a judgment rendered in the district court of the-city of New York for the first judicial district
    
      Samuel D. Peck, for resp’t; Curie, Smith & Mackie, for app’lts.
   Bookstaver, J.

Plaintiff sued for his commission on certain sales made by him for defendants. His claim was admitted, and defendants set up a counterclaim alleging that the plaintiff was instructed to take all orders “ subject to changes in the tariff,” and because he did not do this in all cases claimed damages to an amount exceeding the cause of action of plaintiff. Defendants, in proof óf their counterclaim, offered in evidence a copy of art import order of Neuhausel Bros, and another of William H. Bur-tell & Co., which plaintiff took for them and transmitted to them. Plaintiff claims that when these orders were taken he stated to the persons to whom the goods were to be sent that they would be sold “ subject to the change in the tariff,” and that he immediately sent the orders to the defendants and instructed them that the sales were made subject to tariff changes. Notwithstanding this,' the defendants accepted said'orders, containing a list of the items, t.erms, etc., and wrote at the bottom of the acceptance the following: “Subject to change of tariff.” To this clause the purchasers objected, and defendants replied that it was put there in order to prevent misunderstanding in cases where import orders had to be filled, and that not hearing from the purchasers at once the defendants had concluded that everything was satisfactory,, and claimed that if they had any objection to make to the clause inserted it should have been made at the time of receiving the bill with the goods. Thereupon the purchasers immediately offered to return the goods.

In ■ our opinion the orders transmitted by the plaintiff to the defendants were not contracts binding on them; they were signed by nobody, and were simply memoranda of the qualities and prices. It was within defendants’ power, had they chosen, to have refused to fill the orders altogether, or to have modified the terms. If they did not insert the provision in question, they were as much at fault as the plaintiff; if they did insert the clause, as they claim, and would only sell upon those terms, then it is clear from the testimony the purchasers offered to return the goods to them and cancel the order. If in their opinion it was-better to sell the goods, notwithstanding the purchaser declined to pay the increased duties, it was a matter for them to determine, and with this determination the plaintiff had nothing whatever to do.

We therefore think that the justice was right in refusing to-■allow the defendants’ counterclaim, and that the judgment should be affirmed, with costs.

Bischoff, J., concurs.  