Newhall v. Appleton

Decided July 5, 1892

The Superior Court of New York City · decided 1892-07-05

<p> Contracts—Canvasser’s commissions on orders obtained for publications —Acceptance shown by reception and, entry on the firm, books. </p> <p>In an action to recover commissions claimed to be earned by plaintiff as a canvasser of the defendants’ publications, the principal contention was the construction to be placed upon the words of the contract, which was oral. The plaintiff testified to the effect that in a conversation with the head of defendants’ serial department it was agreed that he was to receive $4 “an order for each order that he took” for the publications other than the cyclopedia, and §15 “ an order ” for the cyclopedia. Blank subscription papers were supplied by the defendants to the plaintiff, who procured the signatures to the papers of a number of persons in Texas and Louisiana and forwarded the same by mail to the defendants. The plaintiff produced evidence tending to show that the subscription papers so signed were “ orders ” within the meaning of the contract, upon acceptance of which he was entitled to the agreed commissions. The defendants contended that the expression “four dollars an order” had a well settled meaning in the business and was so understood by the parties to the contract, viz.: that the commission was to be regarded as earned only after the subscriber had taken and paid for two parts or numbers of the work subscribed for. The referee refused to find to this effect but did find that upon acceptance by the defendants of the orders, the commissions became due, and that defendants did so accept the orders. Held, that no error was committed by the referee in so ruling. If the referee erred in finding that the agreement in question was that the plaintiff should be paid when his orders were delivered to defendants and accepted by them, he only erred in finding that an acceptance by defendants was a part of the agreement, and such an error could not prejudice defendants. There was evidence that an order became a good order upon acceptance by defendants, and such acceptance was shown, as in the present case, by the reception of the orders and entry thereof in the firm books.</p>

Decided 1892-07-05

By the Court.—Dugro, J.

¶1If the referee erred in finding that the agreement in question was that the plaintiff should be paid when his orders were delivered to the defendants, and accepted by them, he only erred in finding that an acceptance of the orders by the defendants was part of the agreement, and such an error could not prejudice the defendants.

¶2There is evidence which will sustain a finding that the orders were accepted.

¶3The witness Rowland states that the only difference between an order and a good order is that the latter must be accepted by the house, and that an order becomes a good order as soon as the house receives it and enters it on the books.

¶4It follows that an order which has been received and entered on the books is one that has been accepted. There is evidence that the orders were received and entered on the books.

¶5Upon the whole case the judgment should be affirmed.

¶6Gildersleeve, J., concurred, Sedgwick, Ch. J., not voting.