#### Robert Colwell, as Administrator, etc., of Robert Colwell, Jr., Deceased, Respondent, *v.*E. R. Allen Foundry Company, Appellant.

Second Department,

January 10, 1908.

Principal and agent — action for commissions — abandonment of contract— erroneous charge.

The defendant entered into a contract with a broker to pay him commissions on goods manufactured for a third party in consideration of the broker introducing the defendant. A trial order was delivered by the defendant, on which he paid the commissions as agreed. On applying to the third party for further orders the defendant was informed that such orders would not be placed if there were a commissionman or broker between "the parties. On being informed of such refusal the broker called upon the third party and endeavored to bring about another sale, but the third party again refused upon the ground stated. Thereafter the third party negotiated directly with the defendant for the manufacture and sale of similar goods. In an action to recover commissions on goods subsequently sold,

*Held,*that, as the jury would have been justified in finding that the contract for commissions had been mutually abandoned, it was error for the court to refuse to charge that if the contract were abandoned after the delivery of the first •order the defendant might negotiate other sales with the third party without liability for commissions.

'Appeal by the defendant., the E. R. Allen Foundry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office- on the lltli day of February, 1907, denying the defendant’s motion', for a new trial made upon the-minutes.

*James O.*Sebring, for the appellant.

*George W. Wingate,*for the respondent.

Hooker, J.:

This verdict represents a commission of one-quarter of a cent per pound upon castings manufactured by the defendant for the Parsons Manufacturing Company, to which company the defendant had *602been introduced by the. plaintiff’s, intestate, Kobert. Colwell,' Jr., a broker in castings. The broker died-subsequent-to the action-and. the present plaintiff, liis administrator, was .substituted as plaintiff. The plaintiff’s evidence tended to show .that. Mr". Allen, whose authority to bind the defendant was undisputed, .called op Colwell, Jr., the- broker, seeking contracts, for the -manufacture of... castings; that the broker showed him a blue print of a design of a .grate bar casting, and after some- discussion-between" them,, Allen'stated" he felt sure that the defendant. could make that casting, and that he would like tó see the casting- itself, and stated that - if the broker would take him to a place where he could' see the castings themselves .' so that’ he could determine whether he "could make them, arid if he undertook to make any castings for this concern, Tie would’ "pay-the" broker one-quarter of a cent a pound-'commission oh all that he sold them,.provided the broker would "take him, after lie had seen the' casting-and decided whether-.he could make it, to-the principal, and let him inake his own price and do liis own negotiating as to the price and timé of- delivéry. " Thé broker- accepted the proposition, exhibited the castings, Allen was-satisfied -that his concern could make them, the broker introduced Allen' to' the Parsons Manufacturing Company, the consumer of those.castings, and there resulted - a contract between the Pargons Manufacturing' Oohipany and this-defendant for the manufacturing of two carloads' of pástings for-the defendant as a trial-order, which were delivered by tlie "defendant and" paid for by the Parsons Maritiaettiring Company, out of which payments the defendant remitted to tlie broker a quarter of a cent a pound. After this delivery, Allen called-upon the" Parsons. Company seeking more business, arid was asked whether there was- any. commissiomnan or broker between the Parsons Company .and the defendant; he stated that--there-"Was, the-hrókér was.Mr. Colwell, and was then advised that the--Parsons. Company would not deal with any manufacturer" where -there was a broker between them,., for two or three reasons which "were enumerated, and'was advised that this condition would prevent further-business between them.. Allen repeated the incident to tlie broker,, who replied; “ l am-sorry about, .that.” Later the ■ broker called upon the Parsons Manufacturing -'Company in an endeavor to bring about a resumption of dealing between it- and the defendant,' "but was told'what'Mr. Allen-*603had been advised, namely, that they would not deal with a manufacturer where there was a broker between them. A week or so later the Parsons Company received some large orders which necessitated an unusually large number of castings in a short time, and it commenced negotiations direct with the defendant for the supplying by it of certain castings similar in the main to the two carloads of castings which had been manufactured as a trial order. From that time up to the commencement of the action tké defendant manufactured for and delivered to the Parsons Company several hundred thousands of pounds of castings, on which it has refused to pay the broker any commissions. This action was to recover commissions on all deliveries subsequent to the two carloads of the trial order.

The defendant asked the court to charge the jury that if the contract between the defendant and Colwell was abandoned by the parties after the delivery of the two carloads of the trial order and before the negotiating of the Parsons Company with the defendant direct, then the defendant had a right after that to take up the matter with the Parsons Manufacturing Company, and that if they ■obtained business from the Parsons Manufacturing Company after that Colwell was not entitled to the commissions thereon. This •. request was refused and the defendant excepted. As an abstract proposition of law it cannot be doubted that the request expressed the true legal principle, for, generally, if the parties to a contract by mutual consent abrogate, or by their conduct abandon the contract between them, either party is free to contract elsewhere without respect to the provisions of the former contract. The request was ref used, by the learned trial court evidently upon the theory that there was not only no evidence of a mutual abrogation of the contract for the payment of commissions, but also no evidence of an abandonment of that contract between the broker and the defendant. We think, however, the court fell into error, and that the jury would have been justified in finding that it was the intent of Colwell and the defendant to abandon the contract for the payment of commission, for the statements and conduct of Colwell' were susceptible of that interpretation, and it was for the jury to say whether or not there was a mutual intent to abandon; Colwell had been told that because of his presence in the deal there could be *604no further dealings between the Parsons Company and the defendant ; he expressed regret and at once called upon the Parsons Company and' made an effort to induce them to revise their determination, and later, when he found himself unable'to induce the Parsons Company to deal with the defendant, tried to get them to place their business with other foundries. For this error in refusing to charge as requested, the judgment must be reversed.

The judgment and order should be reversed and a new trial granted, costs to abide the event, '

Woodward, Jenks, Rich and Miller, JJ., concurred.

Judgment and- order reversed and new trial granted, costs to abide the event.