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July 26, 1961

Edward SHAPIRO, Plaintiff
C. C. STAHL, t/a Valley Novelty Works, Defendant

The opinion of the court was delivered by: FOLLMER

This is a suit for commissions on sales. The case was tried to the Court without a jury. On consideration of the pleadings and the testimony of the witnesses, and upon the entire record herein, the Court makes and files its Findings of Fact and Conclusions of Law as follows:

Findings of Fact

 1. Plaintiff, Edward Shapiro, an individual, resides at 3026-90th Street, Jackson Heights, New York.

 2. Defendant, Carroll C. Stahl, an individual, resides at Bloomsburg, Pennsylvania.

 3. Defendant is a manufacturer of wooden toys and operates under the trade name or designation of Valley Novelty Works.

 4. Sometime in 1957, about the month of August, plaintiff was approached by the principals of Playhouse Toys, Inc., a New York manufacturer and distributor of wooden toys, with the request that plaintiff, while in the course of his travels, be on the lookout for a source of manufacture of items sold by Playhouse Toys, Inc.

 5. On or about September 11, 1957, plaintiff, while calling on another producer in Columbia County, Pennsylvania, visited with defendant relative to finding a customer outlet for defendant's productive facilities. On this occasion an agreement prepared by plaintiff was executed by the parties.

 6. This agreement was based on a mutual understanding that defendant would make a ten per cent. profit on work for customers secured by plaintiff, over and above a five per cent. commission allowed by the agreement to plaintiff on said work.

 7. Under the written terms of the agreement, plaintiff was (1) employed as a salesman and engineer by the defendant; (2) was to lend any and all assistance in the setting up of jobs, breakdown of costs, and procurement of raw materials and suppliers thereof; (3) for the performance of these duties, he was to receive a five per cent. commission on goods sold to customers procured by him.

 8. The only engineering, production, or set up service at any time rendered by the plaintiff was to suggest stapling the metal bottoms of sandboxes rather than nailing them.

 9. The only customer produced by the plaintiff for the defendant was Playhouse Toys, Inc., a concern which had previously requested the plaintiff to find a manufacturer for them.

 10. All job costs or cost breakdowns for items purchased by Playhouse Toys, Inc., were prepared and furnished by its principals.

 11. The only supplies and suppliers furnished or procured by the plaintiff were (1) a carload (2500 sets) of component parts for sandboxes from Arizona Molding Co., Snow Flake, Arizona (this company was also referred to in the testimony as Hunter); (2) nuts and bolts from Atlas Screw and Specialty Co., Inc., 450 Broome St., New York 13, New York; (3) a carload of redwood lumber for kiddie picnic tables from Seneca Distributors of New York.

 12. The plaintiff had material for the sandboxes billed to Paralite Corporation, a company owned and operated by the plaintiff at $ 1.60 per set, less commission of five per cent. and discount of two per cent. The same was billed by Paralite Corporation to the defendant at $ 1.70 per set net.

 13. The plaintiff acted in the capacity of salesman for Atlas Screw and Specialty Co., Inc., and received a salesman's commission on items sold and delivered to the defendant.

 14. The plaintiff entered into a joint venture with Joseph Dickman, trading as Seneca Distributors, in the sale and delivery of the redwood lumber to the defendant.

 15. The plaintiff assured the defendant that the type of redwood lumber supplied was satisfactory for its intended use.

 16. This material was manufactured into kiddie picnic tables and because of the wetness of the lumber, the cartons in which the same were packed became soggy, the tables became stained, and some 900 were returned to the defendant for reworking and repackaging.

 17. In September of 1958, plaintiff came to the defendant's place of business accompanied by Mr. Septoff and Mr. Kaufman, principals of Playhouse Toys, Inc., and at a luncheon which all attended, plaintiff said to the defendant, 'Forget about the whole deal. I am washing my hands of it. I am not going to be bothered with it any more.' Mr. Stahl stated, 'That is all right with me.'

 18. The plaintiff offered and performed no services of any nature of character whatsoever after September, 1958, to or for the defendant.

 19. Defendant had no knowledge until after September, 1958, that the plaintiff was receiving commissions or profit-sharing on materials which he procured for the defendant. 20. Defendant had total gross sales from September 11, 1957, to October 27, 1959, date of institution of action, in the sum of $ 217,363.42 Less returns and allowances 2,042.31 Net sales $ 215,321.11


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