William Cohan Shoe Corp. v. Hickson, Inc.

Lummus, J.

The defendant, on June 1, 1931, made a written contract with the plaintiff whereby the plaintiff was to conduct as proprietor a boot and shoe department in the defendant’s retail store for five years. See R. H. White Co. v. Jerome H. Remick & Co. 198 Mass. 41 ; Jones v. Donnelly, 221 Mass. 213, 218 ; Marcelle, Inc. v. Sol. & S. Marcus Co. 274 Mass. 469 . The defendant was to furnish space, light, heat, delivery service and bookkeeping, and was to be the temporary custodian of the receipts from goods sold, remitting monthly to the plaintiff. The defendant was to be compensated by twelve and one half per cent of the net sales, and the plaintiff warranted that the annual return to the defendant under this plan would not be less than $2,500.

The department was carried on until March 9, 1932, when in consequence of the defendant’s alleged failure to remit monthly as agreed the plaintiff moved its stock of goods from the premises. The defendant does not argue that this was a breach on the part of the plaintiff. See Bucholz v. Green Bros. Co. 272 Mass. 49, 52, 53 . It is agreed that at that time, after deducting its percentage upon net sales, the defendant held the sum of $828.78 belonging to the plaintiff, unless the defendant had the right to insist each month on a minimum credit of a proportionate part of the warranted annual return. Plainly the defendant had no such right. Any lack of revenue in the earlier part of the year might conceivably have been made up in the last month. The warranty could not have been broken until the end of the year, which had not arrived. The direction of a verdict for the plaintiff for $828.78 and interest, to which the defendant excepted, was right.

Exceptions overruled.