First Department, April, 1917.

[Vol. 178.

not alleged that plaintiff presented his claim to the Workmen's Compensation Commission and himself sought to secure the award which was made.

Judgment modified by giving leave to the plaintiff to withdraw his demurrer within twenty days, upon payment of the costs of the demurrer, and as so modified affirmed, without costs of this appeal to either party.

EDWIN FAIRFAX NAULTY, Respondent, v. GORHAM MANUFACTURING COMPANY, Appellant.

First Department, April 5, 1917.

Principal and agent action for commissions for procuring orders for goods to be manufactured and installed by defendant - pleading variance-evidence amendment of complaint appeal when

question sought to be raised not insisted upon at trial.

In an action to recover for commissions on contracts for bronze work to be manufactured and installed by the defendant, the plaintiff alleged a verbal agreement by which he was to receive commissions on all orders procured by him, and this allegation was supported by his testimony. He was also permitted, without objection, to give evidence as to a spe cial contract by which he was to be compensated for the procuring of orders in a specified territory, even though he was not the procuring cause, and no motion was made to amend the complaint to entitle him to recover on such a theory until the close of the entire case, but counsel for the defendant when entering upon the defense stated that defendant was prepared to meet the cause of action alleged and would object to testimony tending to support a cause of action on any other theory, and moved to strike out the evidence as to the special contract on the ground that it constituted a radical variance from the complaint. The court ruled that if the specific objection had been taken on the motion to dismiss at the close of the plaintiff's case, an amendment of the complaint would have been allowed, and that it would not constitute such a substantial variance as to defeat the action. At the close of the evidence the defendant renewed its motion for a dismissal, whereupon the plaintiff was allowed to amend by alleging, among other things, that the agreement was that he was not only to receive commissions on orders procured by him, but also on orders to the procurement of which he contributed in services, whether or not his services were the procuring cause. Held, that the order granting the amendment should be reversed; That, under the circumstances, the complaint should not be dismissed, but a new trial should be granted and an opportunity afforded the plaintiff to apply at Special Term for an appropriate amendment.

App. Div.]

First Department, April, 1917.

Since the plaintiff was only entitled to receive commissions on contracts for bronze work manufactured by the defendant, it was error to allow commissions on the gross amount of a contract including fixtures manufactured by another.

It was error for the court to exclude evidence offered by the defendant to show not only that the plaintiff was not the procuring cause of a certain contract, but that it obtained the same through the efforts of others in no manner contributed to by the services of the plaintiff.

The verdict of the jury awarding commissions on certain specified contracts was against the weight of the evidence.

Although the defendant objected that the action was prematurely brought in so far as it related to commissions on a certain contract claimed not to have been formally executed until after the commencement of the action, such question is not before the court on appeal, since no further question was raised with respect to the matter, either by a motion to strike out or a request to charge, and since the plaintiff's right to recover on said contract was submitted to the jury without objection or exception and without reference to the fact as to whether or not the commissions were earned prior to the commencement of the action.

APPEAL by the defendant, Gorham Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of January, 1916, as amended by an order entered in said clerk's office on the 27th day of January, 1916. The judgment was rendered upon the verdict of a jury. Defendant further appeals from an order entered in said clerk's office on the 14th day of January, 1916, denying defendant's motion for a new trial made upon the minutes.

Robert C. Beatty, for the appellant.

George Gordon Battle [Addison A. Van Tine with him on the brief], for the respondent.

LAUGHLIN, J.:

The recovery was for commissions to which the plaintiff claimed to be entitled by virtue of a parol contract with respect to orders for bronze work to be manufactured and installed by the defendant.

The plaintiff was the president and general manager of the Fairfax United States Mail Chute System, which was a corporation. In the month of January, 1910, negotiations were

First Department, April, 1917.

[Vol. 178. opened between that company and the appellant for the manufacture of bronze mail chutes, and a formal agreement in writing therefor was prepared under date of February 11, 1910, which the evidence, however, tends to show was not executed until the latter part of May. The terms of the contract contemplated the obtaining of orders for bronze mail chutes by the Fairfax United States Mail Chute System, to be manufactured by defendant, and that the defendant should make certain advances for expenses, and an advance for fifty dollars per week for a specified period as an advance drawing account for a salesman, which advances were to be deducted from any amount to which the Fairfax System should become entitled under the contract. It was also provided that a selling commission of ten per cent should be allowed a salesman, and that the net profits, after deducting commissions paid the salesman, were to be divided equally between the two companies. The salesman to be employed was not designated, bt it appears that it was understood that plaintiff was to be the salesman, and he was so employed. He obtained no orders, however, and earned no commissions, but defendant advanced to him the sum of $1,170.95.

The plaintiff alleged that in the month of May, 1910, it was verbally agreed between him and the defendant that he should remain and continue in its employ for selling its bronze goods, other than those specified in said contract, for an indefinite period, "upon precisely the same basis as to compensation as that set forth "in said agreement in writing; and he alleges that the effect of the agreement was that he was to receive ten per cent on all contracts obtained and goods sold for the defendant; and that his commissions were to become due upon the acceptance of the proposed tender, estimate or bids of the defendants" by the party to whom the same might be made. He alleges that pursuant to the verbal employment he procured orders aggregating the sum of $251,950, which the defendant accepted and filled, and that he thereby became entitled to receive as commissions the sum of $25,195, from which he concedes there should be deducted the amount of advances to him under the contract in writing and the sum of $7,076.05 advanced to him under the verbal contract; and he

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App. Div.]

First Department, April, 1917.

demands judgment in the first count of the complaint for the balance of $16,949.

The complaint contained a second count for the fraudulent diversion of orders to deprive the plaintiff of commissions thereon; but after introducing some evidence tending to support that count the plaintiff withdrew it.

The answer is in effect a general denial with a counterclaim for moneys advanced in excess of certain commissions at the rate of five per cent conceded to have been earned by the plaintiff. The counterclaim was abandoned on the trial.

The plaintiff claimed commissions on eight contracts. The verdict shows that the jury disallowed his claim as to one and allowed a recovery on the other seven. The plaintiff claimed to be entitled to recover a commission of ten per cent on all of the contracts. The defendant conceded that he was entitled to commissions at the rate of five per cent on three of the contracts; but denied that he was entitled to commissions on the others. The jury allowed a recovery of ten per cent commissions on six of the contracts and five per cent on a contract for $152,825, for bronze work on the Scottish Rite Temple at Washington. The plaintiff gave evidence tending to show that he rendered some services in endeavoring to obtain the Scottish Rite Temple contract, but he whoily failed to show that he procured or that his efforts secured that contract for the defendant. Two of the other contracts on which the plaintiff recovered commissions were for the bronze work on the East Boston Savings Bank and the Brockton National Bank. In the negotiations by which the defendant secured those contracts the plaintiff took no part. The commission recovered on the Scottish Rite Temple contract is more than the amount of the verdict. It follows that if the plaintiff was not entitled to recover that commission the judgment cannot be sustained.

At the close of the plaintiff's case counsel for the defendant moved for a dismissal on the grounds: (1) That the plaintiff had failed to prove facts sufficient to constitute a cause of action; (2) that there was no proof that the plaintiff was the procuring cause in securing the contracts for defendant; (3) that he had not sustained the burden of showing that he was the procuring cause with respect to the Scottish Rite Temple

First Department, April, 1917.

[Vol. 178. contract; and (4) that there was no evidence that he had anything to do with securing either the Brockton National Bank or the East Boston Savings Bank contracts or of any agreement for commissions with respect thereto. The court, in denying the motion stated that the plaintiff had testified to a special contract by which he was to be compensated even though he was not the procuring cause.

The testimony to which the court referred was given by the plaintiff. It is to the effect that he negotiated a contract for the bronze work on the Springfield National Bank through one James, a Boston architect, and that Fullerton, the manager of defendant's bronze department, subsequently agreed with him that he should have a commission of ten per cent on any business that might come to the defendant through James' office. The two contracts, with respect to which he took no part in the negotiations, subsequently came to the defendant through James' office. The plaintiff further testified that in the spring of 1910 Fullerton agreed that he should have Boston and all of New England, Washington, Philadelphia and Baltimore as his exclusive territory, and that his understanding was that he was to enter the territory first and do the introductory work with respect to negotiating contracts, and that he was to receive ten per cent on jobs in his exclusive territory which he solicited or which were assigned to him and on which he did some work," and that his point of view regarding exclusive territory was that he "was the only man soliciting business for the Gorham Company within that territory and that under an arrangement with Mr. Fullerton we divided up, it did not matter whether he closed the contract or I closed the contract, so long as I work upon some part of the job; if you please, so long as that had been assigned to me, either I had taken the assignment or it had been given to me to work up, that that business belonged to me and no one else. If I had gone into James's office and had taken up some business there with him, that business would be referred to me, and if it flowed rather, if the drawing were in and I was not there at that time, it would still be my business. That is as clear an understanding as I can give of my idea of what I meant by exclusive territory." The plaintiff had first testified to a verbal

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