Ashley v. Wrought Iron Bridge Co.

We think it obvious that, under the agreement for commissions as stated in the defendant’s letter of January 20, 1881, they were to be computed at one rate on the sum for which each bridge was sold, and not different rates for making a sale if the contract price was above $999, as claimed by the plaintiff, and allowed by the referee. The words of the contract led us to this conclusion. The question does not admit of much discussion. The letter states that the company could not afford to pay the same rate of commissions for making a large contract as for making a small one. This expression indicates the intention of one of the parties, to which the other must have understandingly assented. The mode of computing commissions, as claimed by the plaintiff, if adopted, would thwart the purpose of the defendant, in changing the amount of commissions to be allowed on each sale. For instance, if a sale of a bridge was made amounting to $5,000, the commissions, as claimed by the defendant, would amount to $250. If computed in themanner claimed by the plaintiff, it would amount to $360. By adopting the plaintiff’s contention he would get two and one-half times more for making a sale of a bridge for $5,000 than he would receive for making a sale of a bridge for $1,000. These being our views, the item of $99.90, claimed and allowed to the plaintiff as unpaid commissions under the contract, was error, and leads to a reversal of the judgment. The refusal of the referee to allow interest on the item of the $400 seems to be in accordance with our views, as stated in our opinion when this case was here on a former appeal. (44 Hun, 623, mem.) We do not attempt to correct the error pointed out by reducing the amount of the judgment, as there is a controversy between the parties over other items, which were disallowed the plaintiff. If he should support his entire claim, he may recover a j udgment which would entitle him to costs. If the j udgment is mod*363ified by deducting the $99.90, then the plaintiff’s recovery will be less than $50, and he will be chargeable with costs of this litigation, which are now very large. Judgment reversed, and a new trial granted before another referee, with costs, to abide event.