
    Nathan H. Ransom, Respondent, v. John W. Wheelwright et al., Appellants.
    (City Court of New York, General Term,
    November, 1896.)
    Contract — Employment.
    A contract of employment as a sales agent provided for different rates of commissions where sales were made directly by the agent, and where they were not so made, but were the result of former sales made by him. Before the end of' the term of such contract the employers refused to renew on the same terms, but wrote that they would “ cheerfully allow the commission agreed upon for last year upon any sales you may make, and 'which we accept, but prefer not to make any engagement for any length of time or to pay beyond commissions for orders which you may send us,” . which was accepted by the agent. Thereafter he wrote several letters - to parties in foreign countries which the employers undertook to forward with samples of goods', and during the time for which compensation was claimed, large quantities of goods were sold to purchasers procured by such agent. In an action to recover Commissions thereon, Held, that a finding in favor of the plaintiff would not be disturbed.
    Appeal from judgment in favor of the plaintiff,, entered upon a verdict, and from order denying motion to set aside the verdict and to order a new trial.
    Wilson & Wallis, for appellants,
    Abraham Kling, for respondent,
   Conlan, J.

This is an appeal from a judgment rendered upon a verdict of the jury in favor of the plaintiff and against the defendants and from a refusal of the court to set aside the. verdict and to order a new trial.

The complaint sets forth that the defendants were copartners doing business in the cities of New York and Boston; that on April 28, 1890, they entered into a written contract with the plaintiff that he should act as salesman for them to represent and sell their goods in foreign countries for one year from that date upon an agreed commission, and that plaintiff entered upon such employment.

That upon the expiration of such contract the defendants further agreed with the plaintiff by letter to allow him thereafter the same rate of commissions as. theretofore, upon such sales that he may make,” and that during the period of the original contract and continuation thereof the plaintiff procured the sale of a large quantity of the defendants’ goods upon which he was entitled to a commission amounting to over $2,000, which had-not been paid to him.

The answer admits the partnership of the defendants, the contract with the plaintiff and that he entered upon his agreement, but it alleged that they fully accounted to him for all the commissions to which he was entitled and have paid him the same.

/ It is further claimed by the plaintiff that the sixty-day clause was attached to the continuation of the original contract, which was to expire on the 28th day of April, 1891, and that the continuation of the contract was in existence and force until the 26th day of March, 1893.

This is denied by the defendants.

Upon the trial it appears from a letter dated April 11, 1891, sent by the defendants to the plaintiff at some point in South America, where he was at the' time soliciting orders for the defendants’ goods, and of which letter he was advised by the cablegram on that date, that the existing contract would not be renewed in its terms at the end of the year.

On April 28, 1891, before the receipt of the letter in question and upon the arrival of the cablegram, the plaintiff returned to New York.

The letter passed him on the trip. On his arrival in New York he was shown a press copy of the letter of April 11, 1891, which letter he claims is the continuing in force of his employment under the following clause thereof, viz.:

“We shall cheerfully allow the commission agreed upon for last year upon any sales you may make, and which we accept, but prefer not to make any engagement for any length of time or to pay beyond commissions for orders which you may send us.”

The plaintiff claims to have accepted these terms, upon the addition only thereto that this continuing employment might be terminated upon a notice of sixty days by either party to the other.

It is evident and undisputed that the plaintiff wrote several letters to parties in South America which received the approval of the defendants, and that the defendants undertook to forward the same, with samples of goods, to their • destination, and that before the 26th day of March, 1893, the time when the plaintiff claims his employment terminated, the defendants had sold and delivered to purchasers procured by the plaintiff goods to the amount of about $63,000.

This evidence was furnished by the defendants’ books of account, and the question whether these goods were in fact sold through the plaintiff’s instrumentality or solicitations was submitted to the jury under a very fair and impartial charge by the trial judge.

The original contract contained this express provision, viz.:

“ The said Jonathan H. Ransom is to receive a commission of per cent. on.all sales made directly to the purchaser by him. On all such sales not directly by Mr. Ransom, but such as are considered by Wheelwright, Eldridge & Co., to be the result of his original sale or sales made by him directly or indirectly or purchased through a broker in this market on which a brokerage has to be paid, the said Ransom is to receive a commission of per. cent.”

And the question as to what, if any, commission the plaintiff is entitled to from the sales of the defendants above referred to was, in all fairness to the defendants, left to the jury to be determined.

The witness Everett, one of the defendants, referred to an interview had with the plaintiff after his return from South America, and.testified as follows:

“ He, Ransom, suggested on his return various détails as to how he might continue his services, and it was finally .stated by Mr. Yallale and by myself that he might correspond with any customer of his whom he saw fit, and if from these samples and these letters any sales resulted, he should be entitled to receive, the same commission which he had previously received from the firm,”

And the question whether the sales above referred to were made by- the plaintiff in pursuance of this understanding was one of the questions .submitted to. the jury.

We do not think that the exclusion of any evidence on the trial to which the defendant excepted operated to the prejudice of the defendants’ case.

Upon a careful review of the whole case, we are inclined to the opinion that the charge of the trial justice is entirely fair to the defendants, and, for the reasons stated, we think the judgment should .be affirmed, with costs.

Judgment affirmed, with costs.

O’Dwyer, J., concurs.

Judgment affirmed, with costs.  