THOMAS H. PANCOAST, Appellant,
INDUSTRIAL GLASS COMPANY, Respondent.
APPEAL by the plaintiff, Thomas H. Pancoast, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 24th day of April, 1911, upon the verdict of a jury, rendered by direction of the court, awarding the defendant the amount of a counterclaim interposed by him.
I. W. Cole [Richard E. Jacobson with him on the brief], for the appellant.
George A. Davis, for the respondent.
In July, 1907, defendant entered into a written contract with plaintiff of which the parts material on this appeal are as follows:
'LANCASTER, N.Y. , July 5, 1907.
'Mr. T. H. PANCOAST,
'New York City:
'DEAR SIR.--We herewith accept your proposition to represent us in Eastern markets on commission basis, viz: 5% on all sales sent us direct by you, or mailed us by the buyer in your territory; said commission to be paid as follows: 21/2% when we accept order and the balance or 21/2% to be paid when bottles are shipped on order. * * * It is further understood that we have the right and privilege to refuse to accept any orders sent in by you if we find that the buyer is not entitled to credit. * * *.
'(Signed) EDWIN ZURBRICK, Pres.
'GEORGE WALTER, Secy.
'(Signed) T. H. PANCOAST.'
The defendant's business was the manufacture and sale of glass bottles. After making this contract plaintiff secured orders for defendant's product, which were accepted by it, and shipments were made thereon. It is conceded that such orders were furnished by plaintiff and filled by defendant, aggregating the sum of $35,489.62; that plaintiff is entitled to his full commissions thereon; and that he had been paid an excess of $387.76 above the amount of his commissions computed on that sum. This excess is the counterclaim on which defendant's judgment for damages is based.
In the amount of sales upon which defendant concedes plaintiff is entitled to commissions are included all sales on orders which plaintiff claims he procured, except an order secured by him from Charles De Witt & Co. It will, therefore, be necessary to consider that transaction only in ...