255 F2d 404 Quinn v. Naso

255 F.2d 404

Mark P. QUINN, Plaintiff-Appellee,
Frank Paul NASO and Anna Clarke Naso, copartners, d/b/a Osan
Supply Co., Defendants-Appellants.

No. 339, Docket 24988.

United States Court of Appeals Second Circuit.

Argued May 1, 1958.
Decided May 12, 1958.

Samuel M. Sprafkin, New York City, for defendants-appellants.

Aaron Lipper, of Lipper, Shinn & Keeley, New York City (Richard B. Dannenberg, New York City, on the brief), for plaintiff-appellee.

Before CLARK, Chief Judge, and HINCKS and STEWART, Circuit Judges.


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On this appeal from the award of commissions due plaintiff on sales made by him of defendants' sea food products, we can see nothing clearly erroneous in the trial judge's findings of fact, but instead hold them quite supported by the evidence and rational and reasonable in themselves. Defendants, as their prinmary position, argue that, since the court refused the plaintiff certain of the commissions he sought, it was creating a new and impermissible contract for the parties. This would appear to be a rather perfect example of a non sequitur. The other points, that an accord and satisfaction resulted from the plaintiff's retention under protest of defendants' uncashed checks and that in any event no award of interest should have been made on the amount represented by these checks, are likewise without merit.