Cleveland School Furniture Co. v. Hotchkiss

GAINES, Chiee Justice. The plaintiff an error was a corporation- and was engaged in the manufacture and sale of school furniture. It. entered into a contract with the defendant in error, by which it engaged him to sell its products, in certain counties of the State of Texas, upon commission. The defendant in error was the plaintiff in the trial court, and brought this suit against plaintiff in error, the defendant below, to-recover commissions upon sales alleged to have been made in pursuance-of the contract. The defendant in its answer denied all liability, and further pleaded in reconvention, claiming a recovery against the plaintiff, for commissions paid him under a mistake that they had been earned under the-contract, when in fact they had not been so earned. The case was tried without a jury, and the plaintiff recovered a judgment for the full amount of his demand. The Court of Civil Appeals, having affirmed that judgment, for the purpose of reversing it, this writ of error was applied for and obtained. There is no statement of facts in the record, but the trial judge filed his conclusions of fact, in which the evidence seems to be set out very much in detail. In course of the opinion, we will state only so much of the facts as we think necessary for the disposition of the cause. By the terms of the contract, the defendant employed the plaintiff to-sell for it school furniture in the specified territory, and promised to pay as commissions the excess of price which should be obtained, upon sales-of the furniture, over and above certain prices named in a schedule,, which was incorpoi’ated in the agreement. By a stipulation in the contract, the plaintiff bound himself “to take-all orders for furniture and supplies upon the printed contract blanks furnished by the said Cleveland School Furniture Co., and to use due precaution that they are properly and legally executed; that time sales, shall draw at least 7 per cent until paid, and to sell to such parties only as are fully responsible and legally qualified to enter into contracts, said contracts to be subject to the approval and acceptance of said Cleveland School Furniture Company.” The contract also contained the following provision: “Commissions will be due and payable as follows: One-half' when orders are received and accepted, and balance when settlement is made with said Cleveland School Furniture Company, either in cash or by school warrants lawfully executed.” With but few exceptions, the-purported sales, upon which commissions were claimed, were made to school districts and school communities. The statute in force at the-time these transactions took place provided for the purchase of furniture-for school houses by the trustees of school districts and school communities, but prescribed that, in the first instance, application should be. *123 made to the county judge for an appropriation from the funds belonging to the district or community as the case might be, for the purchase of the articles, and that he should make the appropriation therefor, and, further, that upon the receipt of the furniture a warrant should be drawn by him for the purchase money. (2 Sayles’ Ann. Stats., arts. 3754-5-6.) The court did not find that the law had been complied with in making the sales. On the contrary, it is to be inferred from the findings that the trustees attempted to make the purchase without first applying to the county judge and having him to make an appropriation for that purpose. Some of the purchases seem to have been made upon a long credit, for which we find no warrant whatever in the law. It was found that the warrants which were sent in by the plaintiff to the defendant were not drawn by the county judges, but by the trustees of the respective districts and communities. (See Andrews v. Curtis, 22 S. W. Rep., 72.) It is apparent that in making the purported sales the plaintiff did not comply with his contract with the defendant. The contracts of sale were not “lawfully executed.” They were not sales, because the trustees had not “legally qualified” themselves “to enter into” such contracts. The warrants which were sent in were void, because they were not drawn by the county judges of the respective counties. This is apparently conceded, but the claim on behalf of the plaintiff seems to be that the defendant had estopped itself from setting up this defense. We find, however, nothing in the facts found by the court to warrant this conclusion. The letters from the defendant to the plaintiff, which are set out at length in the court’s findings, do not evince a purpose to waive any of the provisions of its contract with the plaintiff. On the contrary, they show to our minds that defendant’s officers were anxious that the contracts should be executed in compliance with the laws of this State. The obvious purpose of these letters was to insist that the defendant should see that the contracts for the sale of furniture to school communities and districts should be legally executed. By no possible construction can. they be tortured into a waiver of any right contracted for by the defendant in its agreement with the plaintiff. Hor do we see how the case is altered by the fact, that the written agreement prescribes a blank form for the contracts which the plaintiff was to procure. The defense is not that the form is not such as was agreed upon, but that the contracts were not lawfully executed. To use the language of the written agreement, the trustees were not “persons legally qualified to- enter into contracts” to purchase school furniture for their respective districts or communities; that is to say, they were without the power to purchase until they had applied to the county judge,, and procured an appropriation for the purpose. The court also found that the plaintiff, in making the sales, and the-defendant, in accepting the contracts, both acted in good faith, believing that they were valid under the laws of Texas, huí seems to- have concluded that because their interests as to the matter of commissions were *124 adverse, the defendant by its acceptance misled the plaintiff to his prejudice, and therefore cannot complain of their invalidity. This contention, in our opinion, cannot be maintained. The defendant made the plaintiff its agent to make lawful sales, and stipulated that the contracts should be legally executed. He occupied a relation of trust, and it will not do to say that the defendant by relying upon his performance of his duty and his virtual representation that the sales were lawfully made, precluded itself from showing that such was not the fact. It would seem that there would have been no estoppel if both had been within the State (Moreland v. Atchison, 19 Texas, 303; s. c., 24 Texas, 164). But the defendant was a corporation organized under the laws of another State, doing business in that State, and was not presumed to know the laws of this State. (Id.) The plaintiff was a citizen of this State, and he is not only presumed to know its laws, but it was his duty under his contract to inform himself as to such laws, and to pursue them in making sales. He cannot plead his ignorance as an extenuation of his failure to comply with the terms of his agreement. He was not entitled to recover. The defendant having paid commissions upon void sales under a mistake of fact, was entitled to recover them back in its cross-action. But since it would require a somewhat tedious calculation at our hands to determine from the findings of the court the amount which it is entitled to recover, we will not render judgment here. Besides, it would seem that if the plaintiff can show that defendant has collected the money for the furniture sold, and has lost nothing by reason of the contracts not having been lawfully executed, it should not recover the commissions paid on such sales. The judgment will be reversed, and, if the defendant is content to abandon its counter claim, judgment will be here rendered, that the plaintiff take nothing, and that defendant recover its costs. If not, the cause will be remanded. Opinion January 23. Reversed and rendered January 27, 1896, the plaintiff in error having abandoned its counter claim. Reversed and rendered.