Caffey v. Oak Furniture Co.

Walker, J., after stating the case: We are of opinion that the presiding judge placed the right construction on the contract, and that, if it can be explained, there is evidence, both oral and documentary, which tends strongly to sustain the ruling. It will be observed that the contract is very broad in its language, as it says that plaintiff shall receive “10 per cent as commissions on all orders received, accepted and shipped by us.” He had been assigned certain territory which was to be his, and canvassed or “drummed” by him, and the clause above quoted could mean only that the commissions would be paid “on all orders received and accepted” from that territory and shipped by defendant. It does not say that the commissions will be paid only on orders received from Oaffey personally, or returned by him, but on all orders received; and *389 this means from tbe territory, whether sent in by him or not. And there was a reason for this, as shown by the contract, for he was to send in a statement not only of customers who.bought goods on orders, but “a list of customers called on” by him, whether or not they bought goods. The defendant will hardly contend that they intended to avail themselves of these services so as to get a list of persons “called on” without paying for them. It was contemplated that plaintiff should make a general “and close” canvass of the territory, “travel and work the same,” and introduce the goods to the trade, selling such as he could, and get his commissions on all orders received from that territory which were accepted and shipped by "defendant. The case of Strickland was excepted by the court from the instruction because plaintiff admitted that he had agreed that if Strickland would not cover his route he would allow him 6 per cent out of his commission, Strickland to give plaintiff “his routing,” so that they would not conflict. Under a contract similar to this one, the Court of Appeals of New York, in Taylor v. Enoch Morgan's Sons Co., 124 N. Y., 184, allowed commissions according to the rule herein stated by the judge. It appeared in that case that the defendant company entered into a written contract with the plaintiff, by which the latter agreed to travel over a certain route, which was termed in the contract “his route,” at least six times a year, representing and selling defendant’s goods and selling no other goods to conflict with them. Defendant agreed to pay him for his services a commission on all orders accepted from bona fide purchasers, the commission on new trade to be double that allowed on the regular trade. Plaintiff entered upon his duties under the agreement and continued to discharge them until the agreement was terminated. In an action to recover commissions unpaid, it appeared that some of the orders accepted by the defendant came directly to it from the persons making them and some were taken by other employees of the company, also that orders were -received from responsible parties which were not accepted by defendant. The referee allowed plaintiff commissions on all accepted orders made by parties on the line of his route, with certain exceptions specified in the contract, and also upon such unaccepted orders. Held, no error that the commissions were not limited to orders obtained and received by plaintiff, and that defendant had no right arbitrarily and without cause to reject orders from bona fide purchasers. It will be noted that in the Taylor case the contention on the part of the defendant was, as it is here, that the traveling salesman was entitled only to commissions on orders taken by him and forwarded to the company, who was the defendant. This view of the contract was rejected by that Court, and in the course of the opinion it was said by Justice Haight: “On the part of the defendant, it was claimed that he was only *390 entitled to commissions on orders taken by bim and forwarded to tbe company. It will be observed that under the provisions of the contract the plaintiff was required to travel over his route in the three States named at least six times per year and represent and sell the defendant’s goods, he paying his own expenses. His entire reward for the services rendered was in the commissions which the defendant agreed to pay him. He had for many years been engaged in a similar business for Colgate & Co., .had a line of acquaintances and customers, and it became his duty to use his best endeavors to extend the defendant’s trade, introducing its soaps, sapolio, and other goods to the dealers with whom he should be acquainted. He was to be paid commission ‘upon all orders accepted by from bona fide purchasers.’ This language is broad and sufficient to support the contention of the respondent. Had it been the intention of the defendant to limit his commissions to orders obtained and received from him, apt words clearly expressing that intent would doubtless have been used.” The Court further said of the features common to the two cases: “The plaintiff could hardly be expected to drum up customers at his own expense without receiving any benefit from sales made to such. The wording of the contract is such as to lead us to conclude that the interpretation adopted by the referee expressed the intention of the parties, and that the same should be approved. We do not understand the provisions of the contract to be so ambiguous as to make oral testimony necessary in order to explain its meaning, and we quite agree with the general term that all of the evidence taken upon this branch of the case might have been properly excluded; but we do not see how harm has resulted to the defendant, for without the evidence we should be compelled to reach the same conclusion in reference to the meaning of the contract.” The last expression referred to evidence introduced by both parties to explain the meaning of the contract. The two cases are almost literally alike, and are certainly so substantially and for all practical purposes. In that case, as in this, there had been a previous contract and settlement under it, as will appear from this language: “After serving the defendant nine months under this agreement a controversy arose and the employment thereunder was terminated. A settlement, however, was agreed upon and the contract under consideration executed. It is in the form of a letter addressed to the plaintiff by the secretary of the defendant, with the acceptance of the plaintiff written thereunder.” The clause fixing the amount of the commission was as follows: “We agree to pay you a commission upon all orders accepted from bona fide purchasers.” If anything, the language of our contract is stronger in favor of plaintiff’s contention in this case than is that just quoted, and which was held by the Court as fully sufficient to sustain the contention of the plaintiff *391 in tbat case that he was entitled to receive commissions on all goods sold in the territory to bona fide purchasers; and whether the purchases were made in good faith is not involved in this case. If we are at liberty to analyze and apply the oral and documentary evidence, we are of the opinion that a fair and reasonable construction of it would sustain the plaintiff’s contention, especially the documentary proof. The plaintiff testifies directly and positively that the company agreed with him, through Mr. Johnson, that he should have the exclusive right to the territory and appoint subagents, they to receive 6 per cent and he 4 per cent of the commissions, and further, that he should have commissions on all mail orders. “By the general rule of the common law, if there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made or during the time it was in a state of preparation, so as to add to or subtract from or in any manner to vary or qualify the written contract. A court of equity, however, admits such evidence, whether the purpose of the suit be to rectify or rescind an agreement.” Kerr on F. & M., pp. 412 and 413; Potato Co. v. Jeanette, 174 N. C., 242. It is also true that parol evidence is not admissible' to contradict, vary or change a written contract. Moffitt v. Maness, 102 N. C., 457; Farguhar Co. v. Hardware Co., 174 N. C., 369, and cases cited. We need not, therefore, consider the oral testimony; which was properly disregarded by the court. No error.