(183 N.Y.S.) negligence of the decedent or of his parents, the jury found in favor of the defendant, and we could not say that such a finding is against the weight of the evidence. We cannot, however, say that the jury so found. This case, like many others that we have had occasion to review of late, is one in which a new trial might have been averted, had the jury been requested to make special findings in connection with the general verdict. Defendant and his brother resided together, and were engaged in business, if not together, at least at the same place. Defendant not only owned the automobile, but individually hired and paid the chauffeur to run it. The court was of opinion that the evidence presented a question of fact as to whether the relation of master and servant existed between the defendant and the chauffeur at the time of the accident, which question was deemed to arise on evidence that the defendant loaned the use of the automobile to his brother for that evening. On evidence to that effect, the court submitted to the jury the question. as to whether at the time of the accident the chauffeur was the servant of the defendant or of his brother, and instructed the jury that if the defendant loaned the use of the car and chauffeur to his brother, and the brother assumed the authority and direction and control over the chauffeur, then, for the time being, the chauffeur would be the servant of the brother, and cease to be the servant of the defendant, and that if, while acting as the servant of the brother, the accident occurred, the defendant would not be liable. Counsel for the plaintiff duly excepted to these instructions. [2] We are of opinion that the evidence did not warrant the court in submitting that issue to the jury, and that the exception thereto. was well taken. There being no special finding, it may be that the jury found adversely to the plaintiff on this issue, and therefore, if the court erred in leaving that issue to the jury, there must be a new trial. The chauffeur testified that the morning of the day of the accident, his employer, the defendant, directed him to take the defendant's brother, Theodore, out that evening; that he called for Theodore at the office after office hours, and took him down to 9 East Eleventh street to call for an army officer, and then he took the defendant's brother and the army officer to the Waldorf-Astoria Hotel, where evidently they were to dine, and that on leaving them at the Waldorf Theodore told him to go to his supper, and to come back in two hours, but did not give him any directions with respect to where he should obtain his supper, or what he should do in the meantime; that, having a brother who was a chauffeur and kept his car at FiftyEighth street and Park avenue, he determined to go up there, and, not finding his brother there, he went to Goodman's Restaurant, on Fifty-Ninth street, where he knew his brother usually ate his dinner. and found him there; that he had his supper there, and then they went in the automobile down to his brother's room at 145 East FiftyFifth street, and after remaining there awhile he started with the car to take the brother back to the garage at Fifty-Eighth street and Park avenue, which, however, was not the garage where defendant kept his car; that they went up Third avenue, and turned westerly into Fifty-Sixth street, intending to turn northerly at Lexington avenue, and met with the accident in that block. Theodore Schneider testified substantially to the same effect as the chauffeur, excepting that he says he told the chauffeur to come back in 12 hours, and he testified that he did not give the chauffeur permission, or instruct him, to take his brother to his room or to the garage, or know that he contemplated so doing, and there is no evidence to the contrary. On cross-examination, in answer to a leading question, he said he got the use of the car from his brother; that when he returned to the Waldorf, after the accident, the chauffeur narrated the circumstances to him, stating in substance that he had called on his brother, and was taking his brother to the garage, at the time he struck the decedent, and Theodore testified that he communicated this to the defendant the next morning. The defendant, however, denied that his brother so informed him with respect to the chauffeur's report concerning the accident, but he admitted that he told him that the chauffeur had had an accident. The evidence would seem to indicate that the chauffeur at the time of the accident was not engaged in his master's business, or even on the business of the defendant's brother, and that it was not within the scope of his authority to make such use of the automobile; but the original answer admitted that the chauffeur was in his employ, and so engaged at the time of the accident, and while the answer was amended, by eliminating that, it is some evidence of the fact, particularly in view of the testimony of the defendant's brother to the effect that, prior to the verifying of the answer, the defendant knew the material circumstances attending the accident. These are the only material facts relating to the point as to whether the chauffeur became the servant, for the time being, of the defendant's brother. I am of opinion that they are wholly insufficient to present an issue of fact on that point. The chauffeur, in carrying out. his employer's orders to take the employer's brother out that night, and in effect to go where told by the brother, was engaged in the performance of duty for his employer, and no change of employment was intended, and no change thereof resulted by operation of law. The exceptions to the instructions on this point, therefore, were well taken, and require a new trial. On the new trial, however, we suggest that there be, in addition to a general verdict, a special finding as to whether the chauffeur, at the time of the accident, was acting for the defendant, or within the scope of his employment. It follows that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event. CLARKE, P. J., and DOWLING and PAGE, JJ., concur. (192 App. Div. 445) (183 N.Y.S.) TRAYLOR v. CRUCIBLE STEEL CO. OF AMERICA. (Supreme Court, Appellate Division, First Department. July 2, 1920.) 1. Sales 85 (2)-Clause excusing manufacturer for nonfulfillment construed as referring to extraordinary and not anticipated problems; "other causes beyond reasonable control." The provision of a contract for manufacture of war material that defendant manufacturer should not be liable if prevented from fulfilling by strikes, fires, act of God, "or other causes beyond their reasonable control," under the rule of "ejusdem generis," held not to refer to problems of constructing plants, experimenting, securing material and machinery, naturally to be anticipated, and not extraordinary. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Other.] 2. Brokers 63 (2)-Contract construed as making agent's commission earned on producing contract and acceptance by principal. Defendant's contract with plaintiff as its agent to secure manufacturing contracts on commissions to be paid "as and when payments are made to us." providing that after acceptance of orders defendant "shall assume all responsibilities and obligations," held to mean that plaintiff's commissions were earned when he produced a contract which defendant approved, and did not depend on defendant's fulfillment of manufacturing contract. 3. Evidence 450 (6)—Agency contract held not ambiguous, so parol evidence not competent. Agency contract for procuring manufacturing contracts held to present no ambiguity, so as to make parol evidence competent. Clarke, P. J., dissenting. Appeal from Trial Term, New York County. Action by Samuel W. Traylor against the Crucible Steel Company of America. From a judgment for plaintiff, which he deems insufficient, and from an order denying his motion for a new trial, the plaintiff appeals. Judgment and order reversed, and new trial granted. Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ. Dennis & Buhler, of New York City (Owen J. Roberts, of Philadelphia, Pa., of counsel), for appellant. Coudert Bros., of New York City (Frederic R. Coudert, of New York City, of counsel, and Howard Thayer Kingsbury, of New York City, on the brief), for respondent. SMITH, J. The plaintiff was in 1915 a manufacturer of heavy machinery at Allentown, Pa., and had an office in the city of New York. He had manufactured some small shells for the British government. In February of that year he made a contract with defendant for specified commissions upon certain contracts which he should obtain for defendant for the manufacture of war material which might be used by the British, French, Russian, or Italian governments. The contract was contained in a letter written to plaintiff by defendant, dated February 10, 1915, which letter reads as follows: "2 Rector Street, New York, February 10, 1915. "S. W. Traylor, Esq., New York City, New York-Dear Sir: Confirming our talk with you of this date, it is hereby agreed that you shall be our exclusive For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes representative for the sale of war material, such as now is or may be used by the British, French, Russian, or Italian governments, or either of them, and can be manufactured by us. "It is understood and agreed that all contracts are to be submitted to us for approval, before they shall be accepted, and after acceptance, we shall assume all responsibilities and obligations in connection therewith. "In consideration of your services, we agree to pay you as compensation seven and one-half per cent. (7%) of the gross amount of said contract, which said compensation shall be paid to you as and when payments are made to us, and 7% % shall be paid to you regardless of whether or not said contracts are placed with us direct or through you. This contract shall not apply to shell of less than 4.5" calibre, or to quotations contained in letter bearing even date herewith up to March 10, 1915; after March 10, 1915, the shell enumerated in said letter shail be considered a part hereof. "It is understood and agreed that you shall use your best endeavors to negotiate and secure business for us and that you shall pay your expenses and costs of your cables and we shall pay for all cables sent by us. "This contract shall continue in full force and effect until peace shall have been declared between the nations now at war in Europe. Either party hereto, may, however, cancel this contract by giving four months' notice in writing to the other. "Very truly yours, "Accepted: "S. W. Traylor. "February 11, 1915." Crucible Steel Co. of America, Thereafter he procured eight contracts from the British government for the manufacture of various sized shells. Some of these were in form of orders, which were accepted by defendant; but upon their acceptance they became contracts, which were without doubt contemplated by the agreement between plaintiff and defendant. Two of those contracts were fully performed. The other contracts were all to have been performed on or before December 31, 1915, and upon the inability of defendant to tender performance upon the date specified in the contract defendant's time to perform was extended to December 30, 1916. Upon the extended date the defendant made default and the contracts were canceled by the British government. Upon the contracts so far as they were performed defendant has been paid in full, and had before the commencement of the action paid to plaintiff a part of the commissions due to him. This action was brought to recover 72 per cent. commissions upon the gross amount of the contracts, including the unpaid commissions upon payments made to defendant by the British government. The justice stated to the jury that three questions were to be determined in arriving at a verdict: (1) Was it intended by the parties to provide for payment of commissions upon uncompleted contracts upon which the defendant received nothing from the British government? (2) Did the defendant use all the efforts within its reasonable control to fulfill the contracts with the British government? (3) Did plaintiff agree for a valuable consideration to waive commissions on the contract for the 5-inch shells when it undertook to manufacture part thereof as a subcontractor of defendant? The jury found for the plaintiff for the sum of $198,724.36. The figures involved are not in dispute. The verdict indicates the finding of the jury that the plaintiff was entitled to recover commissions on all (183 N.Y.S.) moneys received by defendant under its contracts with the British government, but was not entitled to recover any commissions upon the contracts which were not executed and for which payment was not made. Under the charge the jury might have based its conclusion upon the finding that the parties so intended by the contract and that the contracts with the British government all provided that defendant should not be held liable upon the contracts if it did not fulfill "by reason of strikes or fires or act of God or other causes beyond their reasonable control." The claim of the plaintiff upon the gross contracts amounts to upwards of $593,000. Upon this appeal plaintiff contends that the jury had no legal right to reject any part of his claim upon the grounds stated. [1] We are of opinion that the learned trial justice should not have submitted either one of these questions to the jury. Confessedly there was no fire, no strike, no act of God, which prevented the performance in full by defendant. The manufacture of shells of these sizes was a new enterprise in this country. The defendant had faith that it could perform the contract. The manufacture involved more complications than had been anticipated. There was some delay in constructing its plant, but this was more than offset by the extension of time given by the British government. The failure to perform arose largely through inefficiency in management and lack of knowledge of necessary methods. Defendant was experimenting, and had not finished its experiments when the contract date and extended contract date had passed. There was some difficulty in procuring materials, but the extended date of the contracts was December 30, 1916, and this country did not enter the war until April 6, 1917, so that the government had not assumed control either of production or transportation. These causes clearly were not intended to be included within the phrase "other causes beyond their reasonable control." The rule of "ejusdem generis" controls the construction of this phrase in the contracts, and this phrase, following the specification of "fires, strikes, or act of God," refers to some extraordinary cause, and not to those problems which must naturally be anticipated as to performance. [2] The defendant, then, can alone rely upon the construction by the jury of the provision that the plaintiff was to be paid only "as and when payments are made to us." If this were a contract for commissions for the sale of real estate, the inability of the vendor to furnish title is no defense to an action by the broker, whether or not the defect be known to the vendor at the time of the making of the contract of sale. Such a contract providing for payment of commissions "as and when received" from the purchaser is no defense, if the title fails or time for payment is extended without consent of the broker. Colvin v. Post Mortgage & Land Co., 225 N. Y. 510, 122 N. E. 454. This contract made payment of the contract installments and payment of commissions coincident only if the defendant performed. If defendant failed through inability to perform, other than from causes specified in the contract of sale, the commissions became due at least at the extended contract date.. This construction would be given to the ordinary brokerage contract. In this contract, however, |