Cæsar Misch Incorporation, Appellant, v. Julius E. Mosheim, Doing Business under the Firm Name and Style of J. E. Mosheim & Company, Respondent

Cæsar Misch Incorporation, Appellant, v. Julius E. Mosheim, Doing Business under the Firm Name and Style of J. E. Mosheim & Company, Respondent. First Department, January 10, 1908. Contract for sale of goods by auctioneer construed. Under a contract providing: “We hereby advance you $5,000 on stock and fixtures * * * to be sold at public auction. All over and above the sum of $5,500 realized * * * "we will divide in equal parts. * * * Stock and fixtures guaranteed to bring not less than $6,000,” the owner is -absolutely entitled to $5,500, and hence, must be paid $500 in addition to the advance payment of $5,000 and his percentage of the amount realized in excess of the $5,500. , Appeal by the. plaintiff, the Caesar Misch Incorporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county.of New York on the 25th day of June, 1907, upon the verdict of a jury pondered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 2ist day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes. Solomon De Young, for the appellant. Franklin Bien, for the respondent. [MAJORITY — Houghton, J.:] Houghton, J.: The plaintiff was the owner of a stock of goods and store fixtures, and the defendant was an auctioneer. The defendant submitted to plaintiff the following written proposition: “We hereby advance you $5,000 on stock and fixtures contained in premises 241 6th Avenue. Same to be sold at public auction. All over and above the sum of $5,500 realized at public sale on stock and fixtures we will divide in equal-- parts. All expenses to be paid by J. E. Mosheim '& Co. Stock and fixtures guaranteed to bring not less than Six thousand ($6,000) dollars, and any deficiency below this amount will be paid by us.” This was accepted and signed by both parties. The amount realized upon the sale was $6,201.05. The defendant tendered to plaintiff one-half of the amount over $5,500, insisting that was all plaintiff was entitled to. The plaintiff claimed that it was entitled to not only such one-half, but also to the $500 necessary in - addition to the $5,000 which had been paid, to make the $5,500 stipulated by tlie contract. On trial the court directed a verdict for plaintiff on the basis of such one-half only, interpreting the contract as giving to defendant the $500 as well as one-half the surplus over $5,500. We cannot agree with the interpretation placed upon the contract by the trial court. The contract is very.plain. The defendant did not buy the goods. He simply sold them for the plaintiff. He guaranteed that under liis conduct of the sale the goods should bring a certain amount, and made advancements before the sale was begun. For compensation for his services and expenses in conducting the sale, he agreed that he should take one-half of all the goods brought above $5,500. Hp to that amount all the proceeds belonged to the plaintiff absolutely. There can be no question as to the interpretation of so plain a contract. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. Patterson, P. J., McLaughlin, Scott and' Lambert, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.