Cole v. Lutz & Sheinkman

Upon the record presented for our consideration, it appears that the plaintiff was entitled to all the profits made by the, defendant above an agreed amount. When the plaintiff consented to the substitution of a new subcontractor in place of Gazley Bros., he was still entitled to these profits, and the promise on the part of the defendant to pay him the 1 cent per thousand, which they saved on the contract price, as a substitute for Gazley Bros.’ promise to pay 1% cents per thousand as a commission, was therefore a valid promise. Inasmuch, however, as the plaintiff procured the contract with Gazley Bros, for his own benefit, the loss sustained by Gazley Bros/ imperfect work necessarily reduced the profits to which he would be *324entitled for his commissions, and must be offset. As the amount of this loss does not appear from the record, a new trial must be had.

Judgment reversed, and a new trial ordered, with costs to appéllant to abide the event.