Briggs v. Boyd

By the Court, Mtjlliu, P. J.

By the agreement between the parties, the defendants were entitled to two and a half per cent on sales. This commission' was not earned until an actual bona fide sale. But it was not essential that the sale should be made by themselves. A sale by the plaintiffs, after a delivery of the goods to the defendants, and which sale the defendants completed by a delivery, of the property, was such a sale as entitled the defendants to their commissions. They had done all that was to be done by them, except directly negotiate the sale. It would not be just to permit a consignor to consign property to a commission house, impose upon it the burden of receiving and storing the property, paying' charges for storing and insurance, and then allow the consignor to deprive the consignée of all benefit of the consignment, by selling the property himself.

[Fourth Department, General Term, at Rochester, April 1, 1873.

Mullin, Tálcott and JS. D. Smith, Justices.]

But the defendants were not entitled to the two and a half per cent on the whisky unsold. Yet they were, I think,, entitled to such a proportion of it as the trouble and risk incurred bore to the whole trouble and risk which would have been incurred had the property been actually sold by them. This was obviously less than the whole of the two and a half per cent.

So much of the sum demanded as exceeded the amount to which the defendants were entitled was illegally demanded. And refusing to deliver the property until such illegal demand was complied with, rendered the payment compulsory to the extent of such illegal demand.

The referee had no means of arriving at the true' amount to which the defendants were entitled, and he could not, upon the evidence, say what sum had been extorted from the plaintiffs.

If these views are correct, the judgment is erroneous, and must be reversed and a new trial ordered; costs to abide the event.