Fisher Textile Co. v. Perkins

McLennan, P. J.

(dissenting): It seems to me that the demurrer to the complaint upon the ground that it appears upon its face that there is a defect of parties plaintiff, and that it does not state facts sufficient to constitute a *22cause of action, was. properly overruled, and that tlie interlocutory judgment appéaléd from should be affirmed. ' .

In the complaint it is alleged in substance :■

I. That the plaintiff is a domestic corporation engaged in the manufacture and sale of knit underwear, having its principal office in the city of Utica.

II. That the defendants are copartners engaged in the commission business, having their office in New York city.

III. That on the 13th day of November, 1902, tim plaintiff and the defendants, together with one Bro'Wne, entered into an agreement in writing, a copy of which is marked Schedule “A” and made' a part of the complaint. , ■

TY. That by the terms of said agreement, said Browne was to act as selling agent for the plaintiff and was to sell its goods at prices fixed by one M¡ J. Fisher, plaintiff’s manager ; that such goods as were sold by Browne were to be charged to and delivered by plaintiff to the defendants, and that after deducting six and one-half per cent commission for guaranteeing feueli sales the defendants were to pay to the plaintiff' the purchase price of said goods within ten days, from the date of delivery. . ■

Y. That said defendants delivered to the plaintiff orders.for knit goods which the defendants represented had been sold by Browne, and that the plaintiff, relying upon such representations, charged and delivered the goods to defendants. - !

Then follows an itemized. statement of the goods sold and the. purchase price, amounting to $14,573.02; also' of the payments made by the defendants to the plaintiff, amounting to the sum of $9,465.22, leaving a balance of $5,107.80. It is then alleged that more than ten days have elapsed since the delivery of the goods by the plaintiff to the defendants; that payment of the ..same was demanded. Judgment is demándbd "for the balance unpaid, with interest." '. "

. Except for the contract, Schedule ■“ A,” which" was made a part. . of the complaint, no question could arise upon the fáce of the com"plaint as to the proper party plaintiff. Independent of such schedule, or contract the action is simply one for goods sold and delivered by the plaintiff to. the defendants, at an agreed price, to be paid for at a certain time. The goods were manufactured by the. plaintiff and *23sold by it to the defendants upon their order and they neglected to pay for them when and as they agreed to. Under the allegations of the complaint the plaintiff is the only party who is in any manner interested in recovering the balance of the purchase price of the goods sold by it. The goods sold were its goods, they were ordered and bought of it directly by the defendants, and the purchase price and all of it belongs solely to the plaintiff.

It is urged, that Schedule “ A ” in some manner affects plaintiff’s right to recover as for goods sold and delivered by it to the defendants, under the allegations of the complaint; that with such schedule added to and-made a part of the complaint, it is apparent that parties other than the plaintiff are interested in the cause of action ; that some portion of the purchase price of the goods sold by the plaintiff belongs to such other parties, viz., the Fisher Knit Goods Company and the Sealback Underwear Company. We think such agreement in no manner affects plaintiff’s right of action, does not indicate that the plaintiff is not the sole party interested in the recovery of the purchase price of the goods in question. It was made between the Fisher Knit Goods Company, the Sealback Underwear Company, and the Fisher Textile Company, this- plaintiff, parties of the first part, one Benjamin Browne, party of the second part, and the defendants, parties of. the third part, and provides, in substance, that Browne is to be the sole agent for one year of said three companies for the sale of certain goods manufactured by' them. Browne agreed to act in that capacity and to sell their goods at the prices fixed by one M. J. Fisher, the manager of the corporations who are the parties of the first part. It is then provided “ that such goods as may be sold from time to time by the party of the second part (Browne) are to be charged to and delivered by the parties of the first part to the parties of the third part (the defendants), and that the parties of the third part are to deduct six and one-half per cent from such bills as commissions for guaranteeing such sales, after deducting the usual discounts and allowing for dating, and that the said parties of the third part are to pay the parties of the first part the amount of said bills, less such deductions as aforesaid, withiri ten days from the date of the delivery of such goods to the parties of the third part.” It also provides that all orders which may be obtained by Browne for the parties of the first part must.be *24satisfactory to'the parties of the third part.and must be signed by the parties of the third part, and unless so signed, that the parties of the third part are not to be liable in, any way for such orders or for the payment of such bills. In other words, the agreement simply provides that, Browne shall have the sole right, .to sell the goods of a certain class manufactured by three manufacturing concerns, of which the plaintiff was one, at a price to be fixed by Fisher, the general manager of each; that the orders obtained by Browne for such goods should be turned over to the defendants, and if .satisfactory,. such orders were' to be sent by the defendants to the manufacturer of the goods and were to be filled' by shipment directly to the defendants by such manufacturer, and they, after ten days, became liable to pay the purchase price, less the commissions, etc. It would seem clear that by this agreement the plaintiffs did not become joint sellers. The plain intent of the contract was that any sale made by Browne was to be the sale df the company who inamifactured the particular goods sold, and so far as such goods were, concerned the defendants dealt only with that company. It was not a joint enterprise and no joint liability was assumed by the plaintiffs in any manner. That such was the intent appears clearly from the fact that of this bill of over $14,000 worth of goods the defendants paid some $9,000 directly to the plaintiff.

The case of Spencer v. Wabash R. R. Co. (36 App. Div. 446) is directly in point and correctly states the rule: “ Contracts are joint Where the interest in them for the parties for whom they are created is joint, and separate where that interest is separate; that the circumstances of each case and the situation and relation of the parties and the nature of the consideration, are all to be looked into to see who is interested and who has sustained damage arising from a breach of the contract, and whether such damage was" joint or several.”

In Emmeluth v. Home Benefit Association (122 N. Y. 134) Judge Yaw says: The action follows the nature of the interest, and when that is several, separate actions may be maintained, even if the language of the promise is joint.”.

By the terms df the contract, Schedule A, the Fisher Knit Goods Company and the Sealback Underwear Company had no interest in. the sale of any goods manufactured and sold by the plaintiff, and reference to it in the complaint was only necessary *25because it fixed the price and time of payment of the goods purchased from the plaintiff by the defendants; for that .purpose it was properly made a part of the complaint; only by reference to it could the purchase price and the manner of payment be determined. It was wholly unnecessary for the plaintiff to allege in the complaint that the other corporations named in Schedule A, as parties of the first part, were not interested in the goods sold by the plaintiff or in the sale made by it. That would have been a conclusion pure and simple and not a proper allegation to be. set forth in the complaint.

Even if the form of the contract in the case at bar were such as might create a joint liability, as soon as it appears that the plaintiff is the only one interested, that fact is controlling. We think the complaint clearly shows that the interest of the plaintiff in the alleged sales was separate and distinct from that of the other two corporations which were parties to the agreement, and that the plaintiff is the only one entitled to recover for the goods sold.

The interlocutory judgment overruling the demurrer should be affirmed, with costs.

Stover, J., concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to plead over upon payment-of such costs within ten days after service of a copy of this order, together with notice of- entry thereof and the taxation of the costs.