APPEAL by the plaintiff, Bellman and Sanford, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 14th day of November, 1911, affirming a judgment of the City Court of Albany in favor of the defendant, which dismissed the complaint.
George R. Donnan [Louis F. O'Neill of counsel], for the appellant.
John A. Delehanty, for the respondent.
In April, 1909, the plaintiff, a domestic corporation, entered into a contract with the defendant whereby the plaintiff agreed to act as selling agent of the defendant at the compensation of fifteen per cent of the gross amount of all sales up to the sum of $17,500, and of ten per cent of all sales in excess of that sum, fifty per cent of the commissions to become due and payable when the orders were accepted by the defendant, and the balance when three-fourths of the contract price had been paid. By the contract the defendant agreed 'to advance the sum of Fifty Dollars each week on the first day of the week for expenses,' the defendant 'to retain out of the first Twenty-six Hundred and Fifty Dollars ($2650) of commissions so much as may have been advanced on the expense account above specified.' On May 4, 1909, defendant advanced to plaintiff fifty dollars for each of the two weeks ending May third and tenth but refused to make any further advances. The contract was duly terminated by the defendant on or about July 10, 1909. This action was brought in December, 1909, to recover fifty dollars per week for each week during the existence of the contract, excepting for the two weeks in May for which the advance of fifty dollars per week was made as above stated.
It is the contention of the plaintiff that the weekly sum was to be sent by defendant to plaintiff for the maintenance of the office and to defray the other expenses of the agency, while it
is the claim of the defendant that such weekly sum was merely an advancement to be later accounted for by plaintiff to defendant. I think the defendant's position is correct. The contract, which was drawn by the plaintiff's president, and hence is to be construed more strongly against him, uses the word 'advance' and not the word 'payment,' and provides for the repayment to defendant out of commissions of 'so much as may have been advanced on the expense account above specified.' Further proof that these weekly sums were to be considered as mere advancements is found in the letters of plaintiff to defendant of dates April 10 and May 24, 1909. During the whole period of the contract the plaintiff occupied as an office the single room in the city of New York which it had occupied for years before and which it was still occupying at the time of the trial. Its office force consisted simply of Bellman, the plaintiff's president, and a young lady stenographer. The catalogues and stationery of the agency were furnished by the defendant. The only sale made by the plaintiff during the term of the agency amounted to fifteen dollars, and consisted in supplying a superheater to replace one which had been burned out.
It is unnecessary to consider whether it was error to admit the testimony as to the oral stipulation between the parties, as plaintiff under this contract can in any event only recover for the expenses actually incurred, which, while the plaintiff has not seen fit to prove the exact amount thereof, amounted to a very small sum, for which the $100 has been full reimbursement. The rights of the parties became fixed by the termination of the contract long before the commencement of the action, and the plaintiff having suffered no damages is entitled to no recovery. ( Bradford, E. & C. R. R. Co. v. N.Y. , L. E. & W. R. R. Co., 123 N.Y. 316.)
If, however, the admission of such oral testimony be deemed error, the same was properly disregarded by the County Court. Section 301 of chapter 603 of the Laws of 1910, relating to the City Court of Albany, provided: 'The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits.' This provision is very similar to that of section 3063
of the Code of Civil Procedure, under which the decisions have gone equally far.
For the reasons above stated I think the decision of the Albany County Court affirming the judgment of the Albany City Court was right, ...