Allen's Collection Agency v. Means

CONREY, P. J.

Plaintiff brings this action as assignee of one B. F. Cooper to recover commissions alleged to have been earned under a contract whereby the defendant agreed to pay Cooper, a commission for the sale of defendant’s cleaning and dyeing business to any customer or purchaser procured by Cooper. It is alleged that pursuant to

[465]

that agreement Cooper did procure a purchaser, one Charles T. May, to whom the defendant sold said business.

It is conceded that there was no written contract. The plaintiff and another witness testified to conversations between Cooper and defendant, which conversations we will assume (without deciding) would have been sufficient to constitute a contract. But the defendant in his testimony stated that he never asked Cooper to sell his plant for him, never asked Cooper to see if he could find a buyer for him, and never agreed to pay Cooper a commission for any such service. It is true that after said alleged conversations Mr. May learned from Cooper that said property of the defendant probably was for sale and, after learning that fact, May went to defendant and bought the business. Cooper was not engaged in any brokerage or agency business. His connection with this sale was only of a casual nature. In substance, the only ground of appeal is that the evidence is insufficient to sustain the finding of the court that the alleged contract between defendant and Cooper was not made, and that Cooper did not, pursuant to any agreement, procure a purchaser for said business. The sole argument in support of this point arises from appellant’s claim that the testimony is “overwhelmingly in favor of the plaintiff’s contention.” The rule against this contention, in cases where there is a substantial conflict in the evidence, is so thoroughly established by innumerable decisions that we are forced to the conclusion that the appeal in this case was made for delay.

For that reason the judgment is affirmed, with damages hereby allowed to the respondent on account of said appeal, in the sum of fifty dollars in addition to the costs.

James, J., and Houser, J., concurred.