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Vereinigte Pinselfabriken v. John Bard Rogers.

that when Sardy, Coles & Company sold goods in their own name from stock, the title to such goods was to vest in Sardy, Coles & Company, for they were to deduct from the invoice price of such goods the additional amount to be allowed them, viz., five per cent. This provision would be meaningless unless it was understood that upon the sale by Sardy, Coles & Company of goods in their own name the title of the goods was to vest in Sardy, Coles & Company, and as to such goods they were to be purchaser thereof from the plaintiff. This intention of the parties was emphasized by the eleventh clause of the contract, which provides: "It is understood and agreed that Messrs. Sardy, Coles & Company shall not run any risk for goods sold, except for such as they may sell in their own name." For goods sold in their own name Sardy, Coles & Company were to receive the price for which they were sold, regardless of the invoice price; and it is clear that the contract contemplated that the invoice price was to be the price charged to Sardy, Coles & Company, less the 3 per cent. commission that they were to be allowed for all goods sold in the United States, and the five per cent. which they were to deduct from such invoice price. The amount for which such goods were sold thus belonging to Sardy, Coles & Company the plaintiff would have no interest therein, as Sardy, Coles & Company were to be liable for such goods as for goods sold and delivered to them. There is nothing in the record to contradict this inference that is to be drawn from the contract itself; and the accounts rendered by Sardy, Coles & Company to the plaintiff quite clearly indicate that this was the practical construction that had been placed upon the contract by the parties to it. Thus, the sale memorandums that were sent by the defendants state: "Sales from stock S., C. & Co.'s bills," following a list of each sale, with the amount and then at the end "to our debit," total amount of the goods at the invoice price, followed by an entry, "Comn. on above at 83 to our credit;" thus debit

Vereinigte Pinselfabriken v. John Bard Rogers.

ing themselves with the total amount of the goods sold and crediting themselves with the commission and the five per cent. discount allowed. It also appeared that Sardy, Coles & Company credited the plaintiff with these goods upon their books and charged directly to the purchasers the amount of each separate sale, and that all through their books there was a distinction between goods on which they were entitled to deduct 8 per cent. from the invoice price and the sales that were made where they were entitled to a commission of only 3 per cent. It was also proved that where goods were sold to a customer of Sardy, Coles & Company, they were billed as sales by Sardy, Coles & Company, but when goods were sold to a customer of the plaintiff they were billed in the name of the plaintiff, and during these transactions all moneys received by Sardy, Coles & Company, for goods billed in the name of the plaintiff were deposited in a bank to the credit of the plaintiff, while the moneys received from goods billed in the name of Sardy, Coles & Company, were received directly by Sardy, Coles & Company, and the invoice price, less the deduction of 8 per cent., accounted for to the plaintiff. It follows that the construction given to this contract upon the trial was correct, and that the plaintiff was entitled to recover. There was no error that would affect this result or that would justify a reversal of the judgment.

The judgment and order appealed from are therefore affirmed, with costs.

All concur.

Effect of judgment against joint debtors.-The defendant served after the summons has been served in the original action can make the same defenses or counter claims as if he had been a party to the original action and had then been served.-Richardson v. Case, 3 Civ. Pro. 295-302.

Form of the judgment.-Where the action is against co-partners, judgment is properly rendered against all of them although they were not served with summons. Staigen v. Theiss, 19. Misc. 170; McLoughlin v. Bieber, 26 Misc. 143, s. c., 56, N. Y., Sup. 805.

Richard D. Harris v. George Elliott.


Action to charge defendants not summoned-Complaint. essary allegation in a complaint in an action brought to charge defendants not summoned is the sum remaining unpaid at the time of verification. Burke v. Phillips, 20 Misc. 413-414, S. c., 26 Civ. Pro., 374.

Answers-Defenses available-Statute of limitations-Bankruptcy counter claims.-Under the statute, both as it existed in the Code of Procedure and as it now is in the Code of Civil Procedure, the defense pleaded must have existed when the action was instituted, or if against the judgment itself, the objection must be as to its validity or binding efficacy.

The defense of the statute of limitations is prohibited unless it existed at the time of such original defense.


Like wise as to the defenses of payment-release and discharges in must exist a't the bankruptcy these time when 'defendant counter claims served and also include to the judgment which arose since the judgment was rendered. Kramer v. Schatzkin, 29 Civ. Pro. 86, s. c., 27, Misc. 206, 57 N. Y., Sup. 803; Maples v. Mackey, 89 N. Y., 146; Gibson v. Van Derzee, 47 How Pr., 231; The Broadway Bank v. Luff, 51 How Pr., 479.

SS 8, 14, 1240, 1241, 1245, 1246, 2266, 2268.
Enforcing payment of judgment by punishment for contempt—
Remedy where County clerk wrongfully refuses to docket judgment.
Payment of a judgment cannot be enforced by punishment for con-
tempt when capable of being enforced by execution.

The fact that a county clerk wrongfully refuses to docket a judgment will not justify proceedings for contempt to enforce payment. The remedy of the judgment creditor is by mandamus to enforce docketing.

A judgment creditor is entitled to have the judgment docketed at once, although by its terms it is not immediately payable five days after service of a copy of the decree and notice of entry thereof. The judgment being docketed, execution may issue at the expiration of the time given. (Decided June 5, 1900.)

Richard D. Harris v. George Elliott.

Appeal from an order of the Appellate Division, First Department, affirming, not unanimously, an order of the Special Term, adjudging the plaintiff guilty of a civil contempt and imposing a fine upon him of $1,373.48, and committing him until payment, or his sooner lawful discharge, for that he refused to pay to the defendant, Elizabeth C. Walker, as administratrix, $1,170.20, with interest from April 14,1897, pursuant to a judgment which directed him to make such payment within five days after the service of a copy of the decree upon him.

The Appellate Division gave the plaintiff leave to appeal, and certified to this Court the following question:

"Whether, upon the record on the plaintiff's appeal to this Court from said order of January 5, 1900, the Supreme Court has power to enforce payment of the judg ment in favor of the respondent, Elizabeth C. Walker, against the plaintiff for the sum of $1,284.28, with interest, by punishment of the plaintiff for contempt of Court."

The proofs upon the motion to punish plaintiff for contempt were:

(1) That the plaintiff formerly held a certain mortgage described in his complaint in trust for various purposes, and, amongst others, for the benefit of Thomas H. Wheeler.

(2) That he brought a suit in which he prayed the judgment of the Court as to the rights of the respective parties to and in the proceeds of this mortgage, and in his complaint alleged:

"That this plaintiff has collected the balance due on said mortgage, and now has in his hands a balance of $10,742.38, and holds the same together with interest on said sum from March 9, 1893, subject to the rights and interests of the parties hereto.

"That the plaintiff is ready to deposit the money in his hands in Court, or to make such other disposition of the same as the Court may direct."

(3) That by a stipulation made in the suit, dated De

Richard D. Harris v. George Elliott.

cember 6, 1896, it was determined that the interest of Elizabeth C. Walker, as administratrix of the estate of Thomas M. Wheeler in this fund, was then $1,170.20.

(4) That by her answer to the supplemental complaint the administratrix prayed that "the plaintiff, as trustee of the fund mentioned in the complaint, be adjudged to pay to her the sum of $1,170.20, with interest from April 1, 1897."

(5) That on the trial of the issues the Court determined as follows:

"As far back as 1889 the plaintiff became the assignee in trust of a mortgage for the purpose of securing payment of certain moneys to Riggs & Co., and of depositing in a trust company a sum as security for fees of John Elliott. The plaintiff, having a balance in his hands as such trustee, began an action in equity November 10, 1895, setting out his trust relations, specifying the fund and the claims upon it, asking that the amount owing to defendants be ascertained and praying a determination of the plaintiff's claims upon the fund."

The portion of that judgment which it is sought to enforce by contempt process reads as follows:

"And it is further ordered, adjudged and decreed, that the plaintiff, Richard D. Harris, pay within five days after the service of a copy of this decree and of notice of entry of this decree upon him or his attorneys unto the estate of Thomas M. Wheeler, deceased, or Wyllys Hodges, his attorney, the sum of $1,170.20, with interest thereon from the 14th day of April, 1897, amounting to the sum of $114.08 (amounting in all to the sum of $1,284.28)."

The County Clerk of New York County refused, on the defendant's application, to docket the judgment against the plaintiff on the ground "that said judgment was not by its terms immediately payable, but was payable five days after the service of a copy of said decree and notice of entry thereof, and that it was for this reason not docketable by law."

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