O'Neill v. Eberhard Co.

BEAN, J. The controversy in this case, with the exception of some small items which are not contested, centers around the following proposition: As will be noticed by the portion of the contract set forth, it was understood that the plaintiff was assigned a certain allotment of models of Ingersoll watches for each month and was to be penalized if he failed to dispose of any part of the allotment. Owing to war conditions and interruptions of freight transportation, and a shortage of shipments from the factories, he was required by instructions not to oversell his monthly allotment. A portion of one instruction reads as follows: “If a salesman sends in an order in excess of his allotment, the item will be taken off the Salesman’s order, and if shipped the salesman will not receive credit.” The defendant contends that a large number and amount of the orders sent in by the plaintiff were turned over to the trade mail department and shipped through it, claiming where plaintiff sent in an order which included an item overrunning his allotment, that it had the right to take the entire order from the plaintiff and turn it over to the trade mail order department, ship to the customer, and credit the trade mail department with the order. The plaintiff’s testimony shows that he made no claim for any order over and above his allotment. The portion of the original instruction above quoted clearly shows that only the item oversold was to be taken off, and not the entire order. The contract in addition to the portion above set forth specifies many details for the government of the salesman. Among the last we read: [692] “You must be subject at all times to the rules and instructions issued by us and our principals through us as to the conduct of yourself and your work while in our employ.” 1. The contract is specific as to what sales the plaintiff should be paid for. As to the amount of the commission, although not mentioned in the contract, it was agreed between the parties and there is no dispute in regard thereto. We are inclined to the belief that the instructions which were contemplated to be given to the plaintiff by the defendant under the terms of the contract were to be of general matters or details which would not be in direct conflict with specified terms of the contract. Such instructions should be reasonable and fair and in conformity to the ordinary course of conducting such business. We notice if plaintiff should fail to sell his entire allotment he would be subject to a penalty. He might well anticipate that some portion of his orders would not be shipped, for the reason the customer might not be satisfactory to his principal. Under such conditions the only way for him to be reasonably certain that his allotment would be sold in full would be to make some oversales to offset any rejected orders. Therefore, in accordance with the contract and the original instruction, the defendant would not be authorized where an item of a few dollars was in excess of the allotment, to refuse to compensate plaintiff for the whole order, especially as the defendant turned such orders over to the trade mailing, department and received the benefit of plaintiff’s work. Plaintiff’s testimony indicated that .he sold more goods than he is claiming commission for. He makes no claim for goods sold over the allotment. [693] 2. It may be conceded that under such a contract defendant retained the right to control its own business. Acceptance and shipment of the orders are within the discretion, fairly and honestly exercised, of the employer. He is not bound to accept and ship at all events, nor has he the absolute right of refusal. It is a question of good faith, having regard to the employer’s undoubted right to determine the scope and extent of his own business: Friede v. White Co. (D. C.), 244 Fed. 272, 274; Wolfson v. Allen Bros. Co., 120 Iowa, 455 (94 N. W. 910); Temby v. Wm. Brunt Pottery Co., 127 Ill. App. 441, affirmed in 229 Ill. 540 (82 N. E. 336); Stone v. Argersinger, 32 N. Y. App. Div. 208 (53 N. Y. Supp. 63); Savior v. Lang, 171 N. Y. Supp. 45; Madden v. Equitable Life Assur. Soc., 11 Misc. Rep. 540 (32 N. Y. Supp. 725, 756). It is contended by the defendant that the plaintiff failed to allege acceptance and shipment of his orders or to aver the defendant willfully, arbitrarily, and without just cause refused to ship such orders, and therefore the complaint is insufficient. The plaintiff does not use the language suggested by the defendant, but does allege: “That the defendant promised and agreed to allow and pay to plaintiff a commission of 8 per cent on all watches, razors, pens and fobs sold by plaintiff on accepted accounts and within plaintiff’s allotments within plaintiff’s said térritory, provided for in said contract.” 3. Plaintiff further avers that, pursuant to said employment, plaintiff sold for the defendant goods of the amount alleged, on which the defendant promised and agreed to pay plaintiff a commission. The plaintiff practically avers that he sold the goods under the terms of the contract. There was no mo [694] tion to make the complaint more definite and certain. No demurrer was interposed to that pleading. We think the complaint was sufficient to support a verdict. The findings of fact made by the court take the place of a verdict. 4. The plaintiff’s testimony tended to show that all orders for which he was allowed a commission were accepted and shipped by defendant, and that such orders were within his monthly allotments. The findings of the court are conclusive as to the facts found, if there is any competent evidence to support them: Savage v. Salem Mills Co., 48 Or. 1 (85 Pac. 69, 10 Ann. Cas. 1065); Thompson v. Sargent, 66 Or. 384 (134 Pac. 7); Fields v. Western Union Tel. Co., 68 Or. 209 (137 Pac. 200); Smith v. Badura, 70 Or. 58 (139 Pac. 107); Gorman v. McGowan, 44 Or. 597 (76 Pac. 769); Miles v. Swanson, 47 Or. 213 (82 Pac. 954). There being competent evidence to support the findings of fact made by the trial court, they should not be disturbed. The defendant also relies upon the statements which it sent to plaintiff from month to month as being an account stated. The testimony on behalf of plaintiff shows that he objected to these statements; that when they notified him there was something taken out of his account and put in the trade mail department, lie objected and wrote letters protesting against such procedure; that when he sent in a complaint for not receiving credit for certain orders, defendant’s manager said, “Never mind that,” it might be they did not have the goods in and that they would come in the future months, so there was no fundamental basis that he could go by of knowing what was coming to him; and that a “great many orders went in toward the end of the month, and they [695] didn’t have time to get in on the month.” The court found that defendant had failed to establish its claim of an account stated, and the evidence purported to support the finding. 5,6. To constitute an account stated, each party must understand the transaction as a final adjustment of the respective demands between them taken into consideration in the accounting. The binding-force of an account stated will not be given to the mere furnishing of an account which was not with a view to establishing a balance due, or finally adjusting the matters of account between the parties: 1 C. J., p. 683, § 259; 1 R. C. L., p. 207, § 3. The monthly statements sent by defendant to plaintiff, as indicated by the testimony, did not have the finality necessary to constitute them an account stated. The testimony on behalf of plaintiff indicated that he did not assent to the same. We find no error in the record. Therefore the judgment of the trial court is affirmed. Affirmed. Burnett, C. J., and Johns and Brown, JJ., concur.