China & Japan Trading Co. v. Provand

Scott, J. (dissenting):

In my opinion the plaintiff cannot maintain an action for the alleged excess of packing charges collected, over the actual charges paid, mitil the several contracts between the parties have been reformed, and this plaintiff does not ask for. Each contract definitely fixed the rates of packing charges to be allowed, and these have not been exceeded. If false representations were made as to the actual cost there might be ground for reformation, but so long as the contracts, stand and nothing more is charged than was specifically agreed upon *177I can discern no cause of action. Furthermore if plaintiff has any cause of action at all, it is I think one at law to recover damages, and not in equity for an accounting. Although defendant’s compensation for the services he rendered was to he measured by a percentage of the profits realized, that compensation was distinctly stated to he intended “as a commission.” Plaintiff’s services with regard to a sale of defendant’s property were of the same nature.

On both grounds, therefore, I think that the judgment was right and should he affirmed.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.