L. Scatena & Co. v. Van Loben Sels

This is an appeal by plaintiff from an order denying its motion for a new trial and from such portion of the judgment as allows the counterclaim of defendant.

Plaintiff filed its complaint against defendant upon .two causes of action, one upon a promissory note for $1,000, interest and attorneys ’ fees, and the other for $542.09 for goods sold and delivered.

Defendant, by way of counterclaim, set up a claim to recover of plaintiff one-half of certain commissions charged and retained by plaintiff for the selling of certain farm produce consigned to plaintiff by defendant during the years 1906, 1907 and 1908, under an agreement, as it is alleged, whereby plaintiff promised to repay to defendant at the end of each year one-half the commissions charged by it for the selling of such produce as should be consigned to it for sale by defendant during the year.

The court found in favor of defendant upon his counterclaim and allowed the amount thereof as a credit or offset against the claim of plaintiff against the defendant. It is this action of the court that is complained of in this appeal.

1. The first ground urged for a reversal is that the evidence does not show that the agreement…