D. Sommers Howe, Respondent, v. George Savory et al., Appellants

D. Sommers Howe, Respondent, v. George Savory et al., Appellants. (Argued May 10, 1872; decided September term, 1872.) This action was to recover the balance of an account. The answer set up the non-joinder of A. T. Savory, as plaintiff, and a counter-claim. Plaintiff was in the employ of defendants as confidential clerk; the latter had a house in New York and one in Buenos Ayres. Plaintiff made certain purchases in New York consigned to defendants at Buenos Ayres. It was contemplated before the purchase that A. T. Savory should furnish half the capital and have a half interest in the adventure. The first shipments were paid for by defendant’s check, the last by moneys raised on the joint notes of plaintiff and A. T. Savory, which were subsequently paid by plaintiff. Savory never contributed any money or services to the adventure ; defendants being indebted to plaintiff upon an account current, refused to pay unless plaintiff would allow and deduct their advances for the first purchases, insisting that it was plaintiff’s individual matter; plaintiff therefore allowed the amount. The balance sought to be recovered in this action was that shown by the account of sales of the goods sent to Buenos Ayres. The facts, out of which the alleged counter-claim arose, were these; plaintiff, while in defendants’ employ, purchased a bill of goods for them, upon which, at the suggestion and with the consent of defendants, he received a commission from the vendors of $137. He subsequently purchased goods of two other parties, receiving from them, without defendants’ knowledge, commissions to the amount of $491.92. Held, that the defence of non-joinder was properly overruled; that plaintiff was entitled to the commission received with defendants’ assent, but that no presumption arose from the assent to a commission in one case of such an assent in all; that defendants were entitled to all the profits made by plaintiff, their agent, in the prosecution of their business not given to him, and were, therefore, entitled to the commission so received, and this, although the goods may have cost defendants no more on account of the commission. Mr. Forster for the appellants. Henry W. Johnson for the respondent. [MAJORITY — Earl, C.,] Earl, C., reads for reversal, without costs to either party in this court, unless plaintiff will stipulate to deduct from his judgment the sum of $491.92, in which case judgment affirmed without costs in this court. All concur. Judgment accordingly.