Warren Chem. & Manuf'g Co. v. Holbrook

• Decision Date: 25 February 1890
• Citation: 118 N.Y. 586,23 N.E. 908
• Parties: WARREN CHEMICAL & MANUF'G CO. v. HOLBROOK.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 586

23 N.E. 908

WARREN CHEMICAL & MANUF'G CO.

v.HOLBROOK.¹

Court of Appeals of New York, Second Division.

Feb. 25, 1890.

Appeal from supreme court, general term, first department.

Action by the Warren Chemical & Manufacturing Company against Giles J. Holbrook. The general term affirmed a judgment in favor of defendant, entered upon a verdict at circuit. Plaintiff again appeals.

William W. Niles, for appellant.

William Talcott, for respondent.

PARKER, J.

This action was brought to recover for a quantity of roofing material. The answer admitted the sale, delivery, and balance unpaid to be as set forth in the complaint; and set up, by way of counter-claim, in substance, that defendant was the agent of the plaintiff, for the district of northern New Jersey, for ‘Warren's Anchor Brand National Asphalt Roofing.’ That by the terms of the agency he solicited contracts for putting on the plaintiff's patent roofing; the contracts to be made with the plaintiff, but the defendant to do the work, and pay the plaintiff an agreed price for the material. That within his territory the plaintiff, aided and assisted by the defendant, procured a contract to put the roofing on some buildings about to be erected, or in process of erection, by the West Shore & Buffalo Railway Company. That it was expressly stated to him by the officers and agents of the plaintiff that he was to do the work. He then proceeded to make the necessary arrangements in order to fulfill the contract, including the purchase of gravel and other materials which the plaintiff did not furnish. That he was only permitted to put on the roof of the round-house, the plaintiff refusing to furnish the materials, or suffer him to do the other work. That, instead, the plaintiff did the work, and retained the moneys paid therefor. That thereby he sustained damages to the amount of $6,756, and demanded judgment therefor, less the amount of plaintiff's claim. He also demanded a further sum, by way of counter-claim, for work done upon another building; but, as the verdict of the jury was in favor of the plaintiff, as to it no further reference thereto is required. What may be said hereafter will refer solely to the first counter-claim.

At the close of the testimony the plaintiff moved the court for a dismissal of the counter-claim, and for judgment. Several grounds were assigned, but they may properly be grouped into three propositions: First, there is not sufficient evidence of a contract of agency to authorize a recovery; second, if there was a contract, then the plaintiff, having reserved the right to terminate it, the exercise of such right relieved it from all liability; and, third, in any event, the alleged contract was void under the statute of frauds. The evidence on the part of the plaintiff tended to show that prior to February, 1872, the Messrs. Morton were acting as agents for the plaintiff in a territory known as ‘Northern New Jersey.’ That, at about that time, the defendant bought out one of the Mortons, and the new firm was recognized by the plaintiff as its agent. Subsequently the firm was dissolved, and the defendant alone continued the business. The plaintiff was notified of the change, and accepted the defendant as its agent. That it was agreed that during the pleasure of the plaintiff the defendant should have the exclusive right to apply the roofing material within the territory of northern New Jersey. Under this arrangement, the defendant alone, and also in conjunction with the officers and employes of the plaintiff, solicited contracts for the putting on of the roofing. When a piece of work was obtained, the contract was made by the plaintiff. It shipped the patent roofing to the defendant, who did the work, and furnished such other materials as were required to perform the contract; the defendant paying the plaintiff an agreed price for the patent roofing, and retaining the balance of the contract price for services rendered in attempting to secure contracts and putting on the roofing. In the fall of 1881 some of the agents or servants of the plaintiff called defendant's attention to the amount of roofing in contemplation by the New York, West Shore & Buffalo Railway Company, and requested him to join in an attempt to secure the job. This he did, and to that end contributed both time and money. The president of the plaintiff requested that the price be named by the defendant, and asserted that if the contract should be obtained it would be in defendant's territory, and would be his job. It was obtained, and subsequently the defendant was instructed to prepare to perform the work. He entered upon its performance, but was only permitted to roof the round-house. Whether, by the terms of the agency, the defendant acquired the exclusive right to use the plaintiff's roofing materials within the territory in which the West Shore...