W. TYRIE STEVENS, Plaintiff,
GUSTAV AMSINCK and Others, Defendants.
MOTION by the plaintiff, W. Tyrie Stevens, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint at the close of plaintiff's case by direction of the court on a trial at the Kings County Trial Term in April, 1910.
Louis Marshall [Abraham Benedict with him on the brief], for the plaintiff.
Courtland V. Anable [De Lancey Nicoll, Cornelius J. Sullivan and Raymond D. Thurber with him on the brief], for the defendants.
On the second trial of this action the court dismissed the complaint of the plaintiff and directed that his exceptions be heard in the first instance by this court, entry of judgment in the meanwhile being suspended. The case is now before us on the exceptions of the plaintiff and the defendants' motion for judgment. The action is at law to recover damages for a breach of contract. It is our duty to consider the facts proved by the plaintiff in the aspect most favorable to him, as a nonsuit was directed.
It appears that prior to February, 1901, the plaintiff had been a member of a copartnership which carried on the business of selling general merchandise in South Africa. This copartnership was dissolved, and in February, 1901, a written contract was entered into between the plaintiff and the defendants as copartners whereby the plaintiff became the agent or representative of the defendants in the business of selling general merchandise in South Africa. This agreement obliged the plaintiff to turn over to the defendants 'all patents, trade marks, agencies, and compensation of which he is the owner or of which he has control.' It prescribed the duties of the plaintiff and provided for his compensation at $300 per month in addition to proper expenses while in South Africa, 'together with a sum equal to twenty-five per cent (25%) of the net annual profits of said department,' i. e., the South African agency of which the plaintiff was to have charge. The contract was to run for three years and it contained a clause as follows: 'It is Understood, that at the expiration of this contract this agreement shall be renewed upon such terms and for such length of time as shall be mutually satisfactory to the parties hereto.'
The plaintiff entered into the performance of the duties required by the agreement, and the mutual arrangements
between the parties were carried out apparently without controversy during the three years specified. When the original agreement expired, in February, 1904, the plaintiff was in South Africa in charge of the business of the defendants. No formal arrangements were made for the renewal of the contract, but the business continued along as theretofore. On May 18, 1904, the plaintiff, with the consent of the defendants, left South Africa to return to New York on a visit. After reaching New York he called upon his principals and a discussion took place between them relative to an announced intention of the defendants to discontinue the South African department of their general business. It appeared that the defendants were of opinion that the net profits of this department were not commensurate with the volume of business done. The plaintiff attempted to dissuade the defendants from discontinuing their South African department. The discussion culminated on June 29, 1904, in an understanding between the plaintiff and the defendants which the plaintiff in his complaint in this action pleads as follows: ' Sixth. Thereafter and on or about the 29th day of June, 1904, the defendants notified the plaintiff that they had decided to give up their said South African Department, and to withdraw from the South African trade, except so far as orders might come to them unsolicited from three or four of the firms with whom they had theretofore carried on business, and the defendants thereupon agreed with the plaintiff for a valuable consideration, that they would turn over to him the entire business and good will of the said South African Department (with the exceptions above mentioned), the office staffs connected with the said department, both in New York and in South Africa, and all brands and trade-marks connected with the said South African business which they owned or controlled, and all agencies which they had secured from various manufacturers and merchants to represent them in the South African trade, and to withdraw from and cease competition for the South African trade, except to the limited extent above mentioned. Thereupon, in consideration of the premises, the plaintiff agreed to waive all of his rights under his aforesaid contract with the defendants, and to accept therefor the aforesaid transfer
of the defendants' business and good will, and their promise to withdraw from and cease competition for the aforesaid South African trade.'
In the complaint the plaintiff pleads also a breach of the agreement so alleged and asks damages therefor. While the various defendants answer separately, their pleadings are the same in form. Each answers the allegations of the plaintiff as to the agreement in form as follows: 'VI. He admits that on or about the 29th day of June, 1904, the defendants notified the plaintiff that they had decided to give up their South African Department as theretofore and then conducted, and agreed to turn over to said plaintiff the office staffs connected with said department both in New York and in South Africa, and all brands and trade-marks connected with said South African business which they owned or controlled, and all agencies which they had secured from the various manufacturers and merchants to represent them in the South African trade, and that plaintiff agreed to waive all of his alleged rights under said contract with the defendants, as alleged in the paragraph of the complaint herein numbered Sixth, but he denies each and every other allegation in said paragraph of the complaint herein numbered Sixth.'
Each defendant likewise denied a breach of the alleged agreement and the allegation of the complaint as to damages. When the plaintiff at the trial came to sustain the allegations of his complaint as to the alleged agreement he gave proofs which may be summarized as follows: On June 29, 1904, he met the defendants Amsinck and Pavenstedt; he asked them for their final decision as to the continuance or abandonment of the South African department; Amsinck, in the presence of Pavenstedt, said: 'I have decided to close the South African Department; I don't like it; I don't want it. It has been a very large business, and I don't want my name on paper all over the world. I am getting an old man, and I want to leave my affairs in order. I will transfer the entire business to you, with the exception of three or four large accounts, such as Hunt, Leuchars & Hepburn; Baker, Baker & Co. and Vanderbyl & Co.; we will transfer to you all of the books, the staffs at New York and in South Africa, all brands, trade-marks and agencies
we are connected with in the South African business, and you can--we have nothing against you, Mr. Stevens. You can take your time about leaving. We will say this will be all right up to the 1st of September. You can come and go about your official duties here as you like.' Mr. Pavenstedt then spoke up and said: 'Mr. Stevens, you understand that we are merchants, and while we are giving up the South African business and will not seek business any further in that field, you must clearly understand that if a merchant sends us an order from abroad, from any part of the world, accompanied by a letter of credit, we reserve the right to execute it.' Mr. Stevens said: 'Gentlemen, my contract is good for at least another three years, but if you are willing to turn over to me a business worth $50,000 a year, all I can say is, I will take it.' Mr. Pavenstedt then said: 'Mr. Stevens, if there is any firm here that you would like us to interview on your behalf, with whom you think of becoming connected, just let us know, and we will be glad to do it, and you may refer to us freely in every respect.' Mr. Stevens answered: 'I thank you, Mr. Pavenstedt. Will you be good enough to give me a letter to this effect, covering our agreement?' Pavenstedt replied: 'With pleasure.' Thereupon the following letter was drawn up and delivered to Stevens:
'G. AMSINCK & CO., '6 to 9 Hanover Street,
'Tel. Address, Amsinck.
NEW YORK, 29 th ...