Opinion
June Term, 1898.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
This action was brought to recover rent under the terms of a written lease made between the plaintiff's testator and the defendant. The obligation of the defendant under the lease was not disputed, but two counterclaims were interposed; the first for the value of certain repairs made to the demised premises by the defendant. Upon the trial that counterclaim was proven, and its amount allowed in reduction of the plaintiff's claim. The learned judge dismissed the second counterclaim on the ground that there was not sufficient proof in support of it to go to the jury. In that ruling there was error. The allegations of the answer concerning that counterclaim are that the defendant, at the request of the plaintiff's testator, and in June, 1896, obtained for him purchasers of barrels, in the manufacture of which such testator was engaged at the time of his death, and upon which purchases the said testator promised and agreed to pay to the defendant the sum of one cent a barrel. It is further alleged that the persons so procured as purchasers by the defendant bought from the plaintiff's testator some 300,000 barrels, whereupon the testator became indebted to the defendant in the sum of $3,000. To establish this counterclaim, it was necessary for the defendant to prove the contract alleged and the performance of that contract, and there was evidence to establish both those facts. The familiar rule need only be adverted to, that the most favorable view in which the evidence may be regarded must be taken in considering whether an alleged cause of action should be submitted to a jury. It was shown in this case that Mr. Connelly was a manufacturer of barrels, and that he had, prior to the time mentioned in the second counterclaim, made contracts with the Hecker-Jones-Jewell Milling Company to supply them with barrels, and that such contracts were made through the instrumentality of the defendant. It seems that such a contract was made and was being performed for a year ending about the 1st of July, 1896. The witness Bensel testified that as early as March, 1896, he was present at a conversation had between Mr. Connelly, the plaintiff's testator, and the defendant, with respect to the procurement of another contract for Mr. Connelly with the Hecker Company. The witness said that he heard Mr. Connelly say that he was willing to pay Mr. Briggs a cent a barrel if he got the contract for him to supply the mills; that he was then paying the same commission to Mr. Briggs on the contract then current. His testimony is, "I heard Mr. Connolly say at that time that he was perfectly willing to pay Mr. Briggs a cent a barrel." Mr. Connelly said he wanted the contract for a year but the defendant said no, that he would get a contract for six months from the first of July, and Mr. Connelly was to pay him a cent a barrel, and the witness testifies distinctly that that was not a conclusion he drew from the conversation, but that Mr. Connelly positively said he would pay Mr. Briggs one cent a barrel. It is claimed by the plaintiff that this promise was in some way connected with a condition that the commission was to be paid only in case other barrel dealers made the same arrangement with Briggs, but the testimony does not admit of any such limitation. What was said by Mr. Connelly in that relation, according to the witness, was, that if all the other dealers in barrels would do the same, it would be better for the trade and that they would make money. Here, then, is positive evidence, in no way qualified on cross-examination, of the promise and agreement on the part of Mr. Connelly. It was also sworn to by the witness Bovan that in the latter part of June or the 1st of July, 1896, in a conversation had between the witness, Briggs and Connelly, the latter declared that he was paying Briggs a commission on barrels and that he did not understand why he, the witness, who was also a dealer in barrels, should object to paying a commission to Briggs for procuring contracts with the Hecker Company. There was evidence, therefore, to show that Connelly and the defendant had an understanding with reference to the making of a six months' contract for Connelly supplying barrels to the Hecker-Jones-Jewell Milling Company, and that Connelly was paying to Briggs a commission of a cent a barrel on the contracts which were made with that company. There is also evidence in the case sufficient to go to the jury as to the performance by Briggs of the employment. It was shown by the testimony of Mehrtens, the auditor of the Hecker Company, that a six months' contract was made between that company and Connelly on the 1st day of July, 1896, at the office of that company; that he, the witness, was called in by the president of the company and told to draw up the contract, making it only six months, however, instead of a year, and those instructions were given at the close of an interview had between Connelly and Briggs, the defendant, and the president of the Hecker Company. Connelly and Briggs were, therefore, in the office of that company dealing with the president of the company with reference to that contract, and taking into consideration the agreement made between Connelly and Briggs, the condition upon which Briggs was to be entitled to the commission, and the fact that the contract was made at an interview between Briggs and Connelly and the president of the Hecker Company, there was enough to authorize an inference that the contract was made through the agency of Briggs, and in such a way as to entitle him to his compensation. It was proven that some 150,000 barrels were furnished under this six months' contract, and we think there was enough evidence to go to the jury, and that as a consequence the judgment and order must be reversed and a new trial ordered, with costs to appellant to abide the event. Van Brunt, P.J., Rumsey and Ingraham, JJ., concurred.