Bills v. A. W. Stevens Co.

Ostrander, J. (after stating the facts). It is apparent that errors assigned as Nos. 1, 2, and 4 are badly [519] assigned and cannot be considered. No exception was taken to the court’s refusal to take the case from the jury and direct a verdict for the defendant, which fact would dispose of the third assignment; but, if it had been otherwise, material facts were in. dispute and the case was a proper one for a jury. No exceptions were taken to the refusal of the court to grant defendant’s motion for a new trial, for which reason the error assigned as sixth is not for discussion. The fifth assignment of error raises the question whether, under the contract, properly construed, a sale by defendant of machinery which it had received at a fixed and agreed price in exchange and part payment for the original machinery, although such second sale was not made for cash, entitled plaintiff to recover his commission as upon a sale for cash. The provisions of the contract which relate to this subject have been stated. There is no express provision covering the question of commissions upon sales of machinery taken in exchange for original sales, unless it is the one reading, ‘ ‘ Commission on machinery sales shall be payable as the notes, securities, or other proceeds of sale are fully paid in money.” Applying this provision to the facts found by the jury, we are of opinion that the charge of the court upon the subject was favorable to the defendant, since it limited the recovery to a percentage of the amount for which the secondhand machinery was sold, and made it depend, also, upon the fact that the company received upon such sale money or securities which it accepted as money. It cannot be said there was no evidence from which the jury could have found this last-mentioned fact. The construction placed upon the contract by counsel for the defendant is that, as defendant has collected but $375 in money upon the sale of the secondhand machinery, plaintiff was entitled to recover no more than 25 per cent, of this sum, and must wait before recovering any further sum until defendant has realized upon the securities which it accepted and has sold for cash the engine which it took [520] in the second exchange. There is room for construing the contract to mean that the agent is entitled to no commission until defendant has at some price parted with the property which it received in exchange upon the original sale; but, having sold it to persons of its own selection upon terms fixed by itself and accepted at such sale something other than money, it should be held to have fixed thereby the basis for reckoning the agent’s commission. This construction is aided by the fact that the provisions of the contract which deny to the agent all commission in case he sells machinery to an irresponsible person, or to a person who for any reason cannot be forced to pay the .purchase price, seem to be intended to secure care and inquiry upon the part of the agent before making sales. His diligence and good judgment in that behalf affect his commission. In case of a sale of the machinery taken in exchange upon an original sale, no action of the agent is involved. He is not consulted, and it may well be said that the defendant, in making such second sale, in fixing the price at which the property shall be sold, and in determining the method of payment, has also determined the sum upon which the agent’s commission shall be paid. The judgment is affirmed. Grant, Blair, Montgomery, and Hooker, JJ., concurred.