Warwick v. North American Investment Co.

JOHNSON, J. This action originated before L. W. Michelson, a justice of the peace in Washington township, Buchanan county; was removed on change of venue to H. W. Burke, another justice of the peace in the same township, where a trial resulted in favor of plaintiff. Following an appeal to the circuit court defendant filed a motion in which it attacked the legality of the offices of justice of the peace as constituted in Washington township, and one of the errors now claimed is the action of the court in overruling this motion. We have had occasion at this term to consider the question involved, in the case of State ex rel. South St. Joseph Town Company v. Mosman, 112 Mo. App. 540, and the conclusion reached was adverse to the position occupied by appellant. Adopting here the views expressed in that case, we [637] hold no error was committed in the overruling of the motion. Plaintiff sued to recover commission due him as the agent of defendant. The result of the trial in the circuit court was in favor of plaintiff, who recovered judgment. Defendant appealed. There was some conflict in the evidence upon the issue relating to the employment. Plaintiff claimed that he was employed to work for defendant by the superintendent of its office in St. Joseph, J. O. Wyatt, and defendant’s witnesses contended that Wyatt was without authority to represent defendant in the hiring of agents, and acted upon his own responsibility in the employment of plaintiff. In the instructions given the principles of law applicable appear to be correctly defined. This issue, therefore, was settled so far as we are concerned by the verdict of the jury. Plaintiff was employed to sell on the installment plan certain contracts called “investment bonds” issued by defendant. Two classes of these bonds were sold to investors. One called the $250 gold bond, upon which the premiums were payable at,the rate of fifty cents per week, and which matured in seven years, and the other called the $500 gold bond, maturing in eight years with weekly payments of $1 each. It is admitted that on all sales made by him plaintiff was to receive a commission of sixty per cent of the amount paid as premiums for the first twenty weeks; and thereafter he was to receive ten per cent of the amount of installments collected by him. The principal controversy is over commission claimed on account of a sale made to a Mrs. Delaney. Plaintiff sold her fifteen of the “$500 Gold Bonds,” receiving three hundred dollars in payment of the premium installments for the first twenty weeks. At the time of the sale, Mrs. Delaney owned thirty of the “$250 Gold Bonds” upon which she had paid installments amounting to three hundred and seventy-five dollars. She wished to dispose of these bonds and plaintiff, at the time of the sale of the [638] others, undertook to sell them for her. It is a fair inference from plaintiff’s testimony that Mrs. Delaney was induced to purchase the new bonds by the assurance of plaintiff that he could sell the old ones. Being unable to dispose of them, plaintiff, according to his version, procured the somewhat reluctant consent of the defendant to take the old bonds and allow Mrs. Delaney credit upon her new purchase for the full amount paid in on them — three hundred and seventy-five dollars. Plaintiff’s claim in this action includes sixty per cent of the cash payment of three hundred dollars and ten per cent of the said sum of three hundred and seventy-five dollars, which he treats as a collection made by him of premium installments. The court refused to give an instruction asked by defendant which precluded a finding upon the item of |37.50 commission claimed for the credit given on account of the old bonds, 'and in other instructions submitted that item to the jury. We fail to find anything in the evidence justifying this action of the court. Plaintiff’s own testimony relating to his contract for commission is as follows: The contract was that money collected from sales by plaintiff was to be turned over to Mr. Wyatt who would pay him sixty per cent. “Q. Your commissions then were based upon the money actually collected and turned in to the company? A. Yes, sir. Q. And the collection commissions was the same way, wasn’t it? A. The collection commissions was 10 per cent above that. Q. On the money that you actually collected and turned in? A. After the first twenty weeks. Yes, sir. . . . Q. Now, you never had any contract in regard to exchange of old bonds or what your commission would be for the exchange of bonds? A. No, sir.” The burden was upon plaintiff to prove an agreement for commissions upon old bonds received in exchange. Instead of doing this, his own statements, above quoted, negative the idea that the payment of such com [639] missions was contemplated by either of the parties. It certainly conld not be inferred from the agreement to pay commissions upon money collections. Nothing was said by the parties at the time the credit was given upon the subject of the allowance of commissions' thereon. Considering that the old bonds were taken in evidently for the purpose of protecting the sale made by plaintiff; in furtherance of his assurance to Mrs. Delaney, and at a price including commissions paid by defendant to the agents who had effected the original sale, and attended to the collections made thereunder, no reason appears for the payment by defendant of a double commission. Plaintiff failed entirely to sustain his burden with respect to this item and it was error to permit a recovery upon it. Nor, as suggested, has defendant waived its right to complain of this error by asking an instruction in which the jury was told “that plaintiff is not entitled to any collection commission on any old bonds that plaintiff may have exchanged for from any bondholder unless you further find from the evidence that plaintiff had a special authority for making such exchange, and a special contract for a commission on the value of such old bonds.’’After an adverse ruling on its demurrer as to this item, defendant was not required in order to preserve its exception to stand upon the demurrer, but had the right to ask instructions which conformed to the view of the court. It is a defendant’s privilege to tender his defenses as they arise, and when forced to take new positions he may do so without waiving his exceptions to rulings of the court which compelled him to abandon other defenses. [Cochran v. Railway, 113 Mo. 366; Glover v. Bolt & Nut Co., 153 Mo. 342; Bealey v. Blake, 70 Mo. App. 237.] We find no other error in the case. The judgment is reversed and the cause remanded. All concur.