McAdoo v. Moore

LANGDON, P. J.

Plaintiff, as assignee of Lilienthal-Williams Company, brokers, brought this action to recover from the defendant certain commissions claimed to be due said brokers for services rendered by them in negotiating contracts of sale of merchandise, in which the defendant was the seller.

The complaint contained two causes of action, but the plaintiff dismissed the first cause of action and recovered judgment upon the second count.

There is no dispute about the facts, many of them being covered by stipulation of the parties. It was stipulated that Lilienthal-'Wo.lliams Company was employed as broker to negotiate a sale betwen the defendant and L. H. Butcher Company. The brokers’ memorandum of the transaction was introduced in evidence. It called for “35 long tons Australian Buttermilk Lactic Casein.” The pertinent portion of the memorandum upon appeal is the statement that the sale was made: “Subject to Approval Sample Shipped.” The agreement between the buyer and seller (Butcher Company and the defendant) covering this transaction was dated April 2, 1923, and contained this statement: “Special Conditions:

Subject to approval of sample now in transit.

Shipment guaranteed to be equal to said sample. Inspection allowed.”

The plaintiff proved the execution of this contract for a conditional sale; that the merchandise called for was never delivered and that the Butcher Company was ready, willing, and able to furnish a letter of credit as called for by the contract of sale, and the manager of this company stated that the company did not refuse to carry out its part of the contract, but he also stated that he did not know whether or not a sample of the merchandise was ever submitted to the com

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pany. The defendant offered testimony to the effect that samples of the merchandise were submitted by the defendant to the Butcher Company. Further testimony along this line was objected to and the objections sustained. The defendant then offered to prove that the samples to be submitted to the purchaser under the conditional contract arrived by boat about April 24, 1923, twenty days after the agreement was entered into; that the samples were submitted to the representative of Butcher Company, who had been dealing with the defendant, and were refused by him as being unsatisfactory, and he thereupon refused to purchase the goods.