Herrington v. Guernsey

Opinion by Mr. Justice McCollum, All the specifications of error relate to the charge, and the contention based upon them is that it was inadequate and misleading. In order to determine whether this contention is well founded we must consider in connection with the charge the issues of fact made by the conflicting claims, and the evidence submitted in support of and against them. The plaintiff claimed that under an oral agreement with the defendants he sold for them, and at their risk, pianos and organs for a commission of fifteen per cent on his sales of pianos, and a commission of twenty per cent on his sales of organs, while the defendants claimed that he guaranteed the sales and that their liability for commissions was measured by the amounts received on account of them. The defendants also claimed that they had a settlement with the plaintiff on the 23d of August, 1890, of all accounts between them to that date, which settlement disclosed a balance in his favor of $179 that was promptly satisfied by a sale to him of three organs for $170, a cash payment of $3.00 and a discount of $6.00. It was further claimed by the defendants that the settlement was made by the parties with a correctly itemized statement before them, of the accounts as they appeared on the defendants’ books ; that these accounts were kept in accordance with the agreement between the parties, and that they were so kept was recognized and admitted by the plaintiff. The plaintiff conceded that he had a settlement with the defendants at the time mentioned by them, but he characterized it as a “ preliminary settlement,” and his testimony explanative of it was vague and unsatisfactory. He said, however, that he did not remember of seeing the itemized statement referred to [181] as before and examined by tbe parties when they made the settlement, and that he never agreed that any portion of the commissions with which he was credited should be charged back to him. The defendants’ claim respecting the settlement was supported by their own testimony and that of their bookkeeper, while the plaintiff’s qualified denial of it had no support except in his own uncorroborated evidence. This claim was important because if established it would have eliminated from the case every item of the plaintiff’s account which antedated the settlement. It was consistent with, and the evidence supporting it was corroborative of, the claim of the defendants respecting the agreement under which the sales were made. The only direct support of the last mentioned claim was in the testimony of the defendants and this was opposed by the testimony of the plaintiff. It was said by the court in the charge that the latter was corroborated by Rockwell, that as he remembered the agreement “the sales were to be at the risk of the defendants.” It should have been stated in this connection that Rockwell when questioned about the agreement between the parties said: “ All that I can remember very positively was that he (the plaintiff) was at work for them (the defendants) on the road, he was to pay his own expenses, that he was not to have a regular salary, but was to receive commissions; the commissions were to be fifteen per cent on pianos and twenty per cent on organs,” and when further questioned respecting it he said “ there was nothing said about anything in my hearing except that he was to have fifteen and twenty per cent.” It was also said in the charge that “ the plaintiff alleges one agreement of employment, and the defendants, or one of the defendants positively denies that agreement.” The charge upon this branch of the case was inadequate because while it called the attention of the jury to Rockwell’s testimony it did not allude to the contradictions in it, or to that portion of it in which he conceded that the agreement claimed by the plaintiff was not in accordance with the custom of the trade; and it was misleading because the jury might have reasonably concluded from it that the defendants’ version of the agreement rested upon the uncorroborated testimony of one of them. The usage of the trade as explained by Rockwell was to allow the agent to retain one half the amount paid on the instrument [182] until the amounts so retained equaled the commission lie was to have for selling it. If bis commission was twenty per cent on an instrument sold for $100 payable in monthly installments of $5.00, tbe payment of eight installments divided as above stated would satisfy it. If, however, after tbe payment of two installments tbe instrument was surrendered to tbe dealer on account of tbe purchaser’s inability to pay for it tbe agent would receive but $5.00. In other words tbe agent looked for bis commission to tbe payments made by tbe purchaser. An agreement which ignored the usual custom of the trade, which gave the plaintiff liberal commissions and allowed him, to sell to whom he pleased at the risk of the defendants, and which required them to pay the full commission when the amount realized from a sale was not equal to one fourth of it was an anomaly. A majority of the so-called sales on which commissions were claimed and recovered were leases of instruments which were returned to the defendants. These instruments were valued at $8,680, the whole amount paid upon them before they were returned was $609.75 and the plaintiff’s commissions were $583.49. The payments made on nine of these instruments amounted to $162, and the commissions to $383.77. These figures show a loss to the defendants on nine instruments of $221.77, and to this may be added the cost of delivery and tire difference in market value between new and secondhand instruments. Tbe figures are based on a statement in the appellant’s printed argument which is not denied by the appellee. The lease of an instrument is not a sale of it. It is true that the lease gave to the lessee an option to purchase at a price stated therein but it did not make him the owner of the instrument. There is a broad and plain distinction between a sale of property and a lease of it, and strictly speaking an agreement for a commission on the former would not include or apply to the latter. But as the parties made no distinction between them, and the business of the defendants included leases as well as sales we may fairly infer that the commission was the same in each case. We think that the court, having referred in its charge to a part of the evidence affecting the issue concerning the agreement, should have directed the attention of the jury to all the [183] evidence and circumstances affecting it, and that its failure to do so was prejudicial to the defendants’ cause. We have already mentioned some of the omitted matters and to these we may add the obvious inadequacy of the reference in the charge to the testimony of Miss Mills. The fifth specification of error is sustained. Judgment reversed and venire facias de novo awarded.