Rezos v. Zahm & Nagel Co.

[729]

TYLER, P.J.

Action to recover a commission amounting to the sum of $337.50 upon an alleged express agreement for the sale of a certain evaporator or grape-juice concentrator.

Defendant was the manufacturer of the machine and plaintiff claimed to be its agent in consummating the sale in question. The trial court so found and judgment was rendered in favor of plaintiff in the sum prayed for, together with costs. The main ground relied upon for a reversal is that the evidence shows conclusively that plaintiff was acting as the agent of the buyer, for which reason he could not also be the agent of the seller.

The facts are substantially as follows: In the year 1922 the National Fruit Products Company, of Lodi, California, was manufacturing and selling grape-juice. Plaintiff' was engaged under a written contract with the company to dispose of the product upon a' commission basis. The exact nature of the agreement does not appear from the record, as the contract between the parties was not offered in evidence. Plaintiff was permitted, however, over objection, to testify concerning his business arrangement.

The company was desirous of purchasing an apparatus for the manufacture of its concoction and as plaintiff was about to go east to procure orders for the mixture, the officers of the company told him to locate and select the necessary machinery. While in New York City he heard that one was made by defendant at Buffalo, New York, which he thought might be suitable for the purpose. He visited the latter city and called at the office of defendant company with his son. He presented to certain of its officers a card reading as follows: “M. Rezos, Concentrated Grapes. With National Fruit Products Co., Manufacturers of Grape Products, Lodi, California.” Plaintiff stated to them that he had come east to buy an evaporating apparatus for the manufacture of grape-juice. There was a general conversation concerning the construction and operation of defendant’s machine. Plaintiff was familiar with the manufacture of grape-juice. He was taken to defendant’s factory and shown the machine, and he expressed his belief that it was just what he wanted and he advised the officers of the company that he would try his best to have

[730]