
    Jonathan H. Ransom, Respondent, v. John W. Wheelwright et al., Appellants.
    (Supreme Court, Appellate Term,
    January, 1897.)
    Master and servant — Compensation of sales agent.
    Plaintiff claimed commissions under a contract to act as sales agent for defendants at the rate of two and a half per cent, on all sales made by him directly with the purchasers and 'at the rate of one and a half per cent, on all sales made by him indirectly or which were the result of his 'original sales. As to certain sales, he testified that he had sent ■ letters to customers of his, stating that he continued with defendants’ firm and asking that orders be sent to the, firm, but the letters were not produced, Held, that the proof «was insufficient to show a direct sale by him, and that as to such sales he was only entitled to the lower rate of commission.
    Ransom v. Wheelwright, 18 Mise. Rep. 571, reversed.
    . Appeal hy the defendants from an affirmance hy the General Term of the City Court of a judgment in favor of the plaintiff, entered upon the verdict of a jury for $1,837.37. The action was. for commissions upon the sale of goods.
    Wilson & Wallis (William G. Wilson, of counsel), for appellants.
    Abram Klihg, for -respondent.
   Daly, P. J.

Under a contract to act as salesman for the defendants the plaintiff claimed a commission of two and a half per cent, on all sales made directly to the purchasers hy him, and a commission of one and a half per cent.- on such sales not made directly hy the plaintiff, hut such as were the result of his original sales as well as upon all sales made by him- indirectly; and the question at issue was whether he was entitled to any commission upon certain sales made to a firm of Drabble Brothers of Buenos Ayres and others, and if so, at what rate; 'and we held upon a former appeal in this case, upon the proofs as then presented to • us, that the record failed to disclose that the sales in dispute to Drabble Brothers, were made hy the plaintiff personally, or directly, but on the other hand that there was ground, for ■ believing that such sales were the indirect result of plaintiff’s introduction of the goods to the firm of Drabble Brothers, and that upon a second trial the question might arise whether he might not be entitled to a commission of one and a half per cent, upon some of such sales as being the result of his original sales ” or “ the result, directly or indirectly, of his acts.” Ransom v. Wheelwright, 17 Misc. Rep. 141; 39 N. Y. Supp. 342.

. A new trial was had and the chief dispute, as' before, was. whether certain orders received by the défendants from Drabble Brothers were procured by the direct efforts of the plaintiff, or were the result of his original sales to them. He claimed that these orders were directly induced by him, and in addition to the testimony given upon the former trial, stated that he wrote letters to his South American acquaintances and customers, announcing his continued connection with the defendants’ firm and requesting orders to be sent to the house, as he was going on the road and, could not attend to them. He also testified that he asked the de-, fendants to send samples to such customers and keep them posted in regard to prices, which they agreed to do; but, although he states that he wrote to Drabble Brothel’s, among others in South America, his letters to them were not offered in evidence. The proof, therefore, remained substantially the same as upon the first trial, and, if the jury believed that the orders received by defendants. from Drabble Brothers and others were the result of plain-, tiff’s original sales or of his previous introduction, he was entitled to no more than one and a half per cent, commission. The instruction to that effect, asked by the defendants, should have been granted.

The finding of the jury that the sales were made directly by the plaintiff was an erroneous application of the instructions of the; court to the facts of the case. What they necessarily found was. that the plaintiff was so connected with the sales, in aiding or inducing them by the introduction of defendants’ -goods to those customers through" his original sales to them, that he was the procuring, though not-immediate, cause of such sales; and their verdict in his favor should have been for the lesser commission. This error, however, can be easily, cured by a modification of the judgment.

The defendants offered their letters to the customers for the purpose of showing that the defendants brought about the sales and as part, of the res gestae, and as showing the inducement that the defendants were- offering to. the customers to buy of them. These letters were ruled out on plaintiff’s objection and defendants excepted.' Defendants also' offered the letters of the customers, Drabble Brothers, to the defendants in connection with the letters df the defendants as an entire' correspondence) for the purpose of showing that the sales in- question, on which commission was claimed, were made by direct correspondence between the defendants and Drabble Brothers. The letters' were excluded and an bx-. ception was taken. The plaintiff objected to the letters of the defendants as being immaterial, irrelevant and incompetent, as being declarations of defendants to third persons, and objected to the letters of Drabble Brothers as immaterial and as not proven. ■ Whether this correspondence was material or not, whether it referred to the sales upon which commission is claimed or not, we have no means' of ascertaining from the record, since the letters are not printed in the case and no error is apparent, therefore, from their exclusion. Hughes v. Hughes, 10 Misc. Rep. 180.

The other questions raised by appellants’ brief have been disposed of by the decision upoq the previous appeal. The judgment should, be modified by reducing the amount of the' recovery to $1,102.42,. if the plaintiff within ten days stipulate to consent to such reduction, in which case it will be affirmed for that amount,' with costs of the, trial, but without costs of the appeal in this court and the City Court. If the plaintiff will not consent, the judgment will be reversed and a new trial ordered, with costs to appellants to abide the event.

McAdam and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event, unless plaintiff stipulates to reduce the amount’ of the recovery to $1,102.42, in Vhich case judgment as modified, affirmed, with costs of the trial, but without costs of appeals.  