American Law Book Co. v. Bryson

*37 The opinion of the Court was delivered by Mr. Justice Beease. The defendant, while a law student at the University of South Carolina, was employed to sell Corpus Juris-Cyc for the plaintiff. He secured a total of seven orders, including his own. The plaintiff sued the defendant in the Court of Magistrate for Greenville County for the balance claimed to be owing on the account for the books purchased by the defendant from the plaintiff, amounting to $51.69. The defendant in his answer set up a counterclaim against the plaintiff for the amount the defendant claimed was due him by the plaintiff as compensation for his services as salesman. The Magistrate found for the defendant generally. Both parties appealed to the County Court of Greenville County. The county Judge, Hon. M. F. Ansel, found in favor of the defendant a balance of $58.31. The plaintiff has appealed from the County Court to this Court. We are bound by the findings of fact of the County Judge. Hart v. Cook Brokerage Co., 135 S. C., 335, 133 S. E., 822. He found that the defendant secured six orders, which were acceptable to the plaintiff, the sales being made to Wyatt Aiken, Jr., W. E. Ackerman, T. C. McDonald, J. E. Hair, J. H. Earle, and a Mr. Rosenberg and the defendant. The plaintiff claimed that it did not collect the purchase money for the books sold to the purchasers named, except on the sale to1 the defendant. It contends that under the contract the defendant was not entitled to commissions on those sales. It was shown, however, that the plaintiff made little, if any, effort to collect on the contracts secured for it by the defendant. Under the circumstances, the County Judge held that the defendant was entitled to his commissions. The clause of the contract involved herein is as follows: “The company agrees to pay the salesman a total commission of $20.00 on all acceptable orders for complete sets of Corpus Juris-Cyc personally secured and forwarded *38 to the Company; and the salesman agrees to use exclusively the printed order forms prescribed by the Company. The total commission of $20.00 on orders is to be paid as follows : 'One-half of the first $40.00 or any part thereof collected on acceptable orders, payable 50% out of each dollar if when and as collected from the subscriber. The salesman agrees to make no charges whatever against the company for services rendered hereunder, other than the commissions herein provided.’ ” It appears as a matter of fact, so found by the County Judge, which is conclusive on this Court, that the defendant performed all the services he agreed to perform. The following authorities show, in our opinion, that the County Judge was correct as to the legal conclusion he reached: “Where the agent has performed on his part all acts necessary to' the performance of the contingencies or conditions, or to the accomplishment of the contemplated result, he cannot, as a general rule, be deprived of his right to compensation by the refusal of the principal to perform necessary acts on his part, whereby the contingency or contemplated result is defeated.” Agency, 2 C. J., p. 768.- “In Love v. Owens, 31 Mo. App., 501, it is said that to permit the seller to escape his liability to the agent merely because he is willing to let the purchaser go, rather than bring a suit on a valid contract, would be to encourage injustice and open up the way for the purchaser and vendor to get off merely by one failing to comply voluntarily with his written contract and the other to enforce it * * * leaving the agent without redress for the wrong done him. “And if the principal elects to release him rather than to incur expense, etc., of litigation he cannot in equity and justice make such election at the expense of the broker. Parker v. Walker, 86 Tenn., 566, 570 [8 S. W., 391]. * . * * the question of the failure to carry out such contract is a matter that concerns only the parties to it, the one in the right having a complete remedy against the other *39 at fault, which he might prosecute or not as he pleases, and therefore where the contract is mutual the broker will still be entitled tO' his commissions. Donohue v. Flanagan, 28 N. Y. St. [Rep.], 757 [9 N. Y. S., 273], * * * “And the fact that the purchaser refuses to consummate a sale evidenced by a valid enforceable contract will not affect the broker’s rights when his default is not attributable to the broker. Guilder [Gilder] v. Davis, 137 N. Y., 504 [33 N. E., 599] 20 L. R. A., 398.” Notes to Brackenridge v. Claridge & Payne, 43 L. R. A., 593 (91 Tex., 527, 44 S. W., 819). The judgment of this Court is that the judgment of the County Court of Greenville County be, and the same is hereby, affirmed. Mr. Chiee Justice Watts and Messrs. Justices ' StabeEr and Carter concur.