Pressprich & Son Co. v. Nemours Trading Corp. 233 N.Y. 610

Pressprich & Son Company, Appellant, v. Nemours Trading Corporation, Respondent.

Contract — sale — commissions — provision of contract of sale that it was subject to license to export — complaint for commissions defective where it fails to allege license had been granted.

Pressprich & Son Co. v. Nemours Trading Corporation, 199 App. Div. 1, affirmed.

(Argued April 17, 1922;

decided May 2, 1922.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 16, 1921, which unanimously affirmed an order of Special Term denying plaintiff’s motion for judgment on the pleadings and sustaining defendant’s demurrer to the complaint, which alleged .that on January 13, 1920, defendant employed plaintiff, in writing, to sell for it certain sugar, under the terms of a letter, which read: “ We hereby offer you the undernoted firm until 12 m. January 17th, 1920:

2,000/2,500 tons Canadian Granulated, Feb. 2,000 “ u U Mar. 2,000 “ « « Apr. 1,000 “ « a May 3,000 “ a (( Juns 3,000 “ K a July shpt., at 12.754 fob St. John « tt “ “ 12.504 “ “ “ " 12.504 “ Montreal “ “ 12.504 “ “ “ “ 12.504 “ “

subject to irrevocable letter of credit being established in New York American funds immediately after signing of contract, also subject to license to export being granted by Canadian Government. If export prohibited by Canadian Govermnent, contract to be cancelled. We to pay you 10 cents per 100 pounds selling commission on any sales made by you.” The complaint' further alleged that before noon on the 17th day of January, 1920, plaintiff procured “ purchasers ready, willing and able to purchase said sugar on the terms and conditions set forth in said contract of employment as above set forth; ” that defendant entered into written contracts with the purchasers thus procured by plaintiff; and that “ by reason of the procuring of such contracts the plaintiff has earned commissions payable by defendant.” The *611Appellate Division held that in absence of an allegation in the complaint that the Canadian government had granted the required license to export, plaintiff could not recover.

Henry H. Man for appellant.

George E. Morgan for Bowerman Brothers et al., interveners.

Vermont Hatch for respondent.