
    William R. Robinson, Appellant, v. H. Edwards Ficken, Respondent.
    (New York Common Pleas
    Additional General Term,
    January, 1895.)
    In an action for goods sold and delivered defendant set up an agreement by which payment was to be made therefor by setting off against their value certain commissions to be earned by influencing trade to plaintiff’s assignor. Defendant testified that he was to receive fifteen per cent of the amounts charged to customers obtained by him, and that the value of the goods sold to such customers at catalogue prices was §2,115. Plaintiff’s assignor testified that there was a trade .discount to purchasers of from twenty to fifty per cent. The justice rendered judgment for the amount claimed by plaintiff, less $220.50. Held, that such judgment could not be sustained, as it was not seeundwm allegata, et probata.
    
    Appeal by the plaintiff from a judgment rendered in his favor for twenty-nine dollars and twelve cents by the justice of the District Court in the city of New York for the third judicial district.
    
      PMllÁ/ps d¡ Avery, for appellant.
    
      Walter W. Menzel, for respondent.
   Bischoff, J.

This is an action for goods sold and delivered by plaintiff’s assignor to the defendant. The amount claimed by the plaintiff, $249.62, was admitted to correctly represent the value of the goods, and the trial proceeded upon the separate defense set up by the defendant, that at the time of the sale an agreement had been entered into whereby payment for the goods in question was to be made by setting off against their value the amount of certain commissions to be earned by the defendant in influencing trade to Moore, plaintiff’s assignor.

Upon the trial there was a conflict between the testimony of Ficken and that of Moore regarding the terms of this agreement, but, according to the respondent, these terms were that fifteen per cent of the amounts charged by Moore for goods sold at the defendant’s recommendation should be allowed for commissions, and in support of his offset as claimed defendant gave testimony as to the amount of goods thus sold through his influence, the total value of. these goods at Moore’s catalogue prices aggregating $2,115.

Moore testified that there was a" trade discount allowed to purchasers of these goods of from 20 to 50 per cent,” but no further particulars as to this discount, and in what cases it was actually allowed to the purchasers, were given. Judgment was rendered in favor of the plaintiff for $29.12, an offset of $220.50 being thus allowed to the defendant.

The evidence fails to disclose any basis upon which this result could be obtained, unless we assume that some items of the defendant’s claim were arbitrarily disallowed while his statement in the main was credited by the justice, or that some discount of more, than twenty and less than fifty per cent was taken from the list prices of the total amount of trade claimed to have been secured to Moore by defendant.

A judgment based upon any such speculative method of computation cannot be said to be secundum allegata et probata (Fuld v. Kahn, 4 Misc. Rep. 600), and is not, therefore, to be supported.

Judgment reversed and new trial ordered, with costs to abide the event.

Bookstavee, J., concurs.

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