Fuchs v. Standard Thermometer Co.

Brooke J. (after stating the facts). At the outset we are satisfied that there can be no recovery upon the quantum meruit. Sullivan v. Railway, 135 Mich. 661 (98 N. W. 756, 64 L. R. A. 673, 106 Am. St. Rep. 403). Plaintiff himself testifies to a definite contract, and his right to recover must be predicated thereon. That contract was confessedly indefinite as to duration and left the plaintiff at entire liberty to abandon his employment at any moment. In case it was terminated at any time it contained no provision for compensating plaintiff for the time and money he had expended in introducing defendant’s instrument. The learned circuit judge who tried the case at circuit held the contract void for lack of mutuality, under the authority of Wilkinson v. Heavenrich, 58 Mich. 574 (26 N. W. 139, 55 Am. Rep. 708), and directed a verdict for defendant. Plaintiff’s counsel ask the following question in their brief: “Will this court, because defendant could not compel plaintiff to sell a given number of its speedometers, hold that it could at any time terminate plaintiff’s [41] agency and reap the fruit of plaintiff’s labors without some compensation therefor?” The obvious answer to this query is that courts do not make contracts for individuals. If plaintiff chose (as he did) to enter upon his employment under a contract for an indefinite term, without providing for compensation in case of the termination thereof, the courts are powerless to aid him. He might have pro-' tected himself but failed to do so. In our opinion the contract, as testified to, was not void. There was an offer upon one hand and an acceptance upon the other. No damages can be recovered because of its termination, for none were provided for in the contract. But so far as it was performed it was valid and binding upon both parties, and plaintiff is not debarred from recovering compensation under its terms. Plaintiff testified: “I cannot claim commission on anything I did not make a sale — that I did not close. “Q. Now, supposing you did not get any order at all, were you to receive any pay then? “A. No, sir.” But again he said: “Q. Then you also claim that in this early conversation that you had with Mr. Abel he agreed to give you the same commission on all reorders? “A. Yes, sir.” It appears that the Cadillac Company entered into a second contract with defendant for the season of 1911-12, under which about 12,000 instruments were sold at $10 each. While the correspondence, which we have carefully examined, seems rather strongly to negative plaintiff’s claim as to this alleged phase of the contract, we do not think, in view of the foregoing testimony, that it can be said as a matter of law that no such agreement was made. It is a familiar rule [42] that, in directing a verdict, the testimony of the party against whom the verdict is directed must be given its greatest probative force. Viewed in this light and as the record now stands, we are of opinion that this question should have gone to the jury. Defendant urges that, even if the oral contract was .as testified by plaintiff, there can be no recovery because of the lack of authority in Mr. Abel to make it. We do not agree with this view. Mr. Abel was the man sent on by the defendant to conduct negotiations with plaintiff. After he made the contract (whatever it may have been) plaintiff undertook the agency. His employment was known to all of defendant’s officers (as is evidenced by the correspondence), and defendant has had the benefit of his services. It cannot now be heard to say that a contract, the avails of which it has enjoyed, was made by its agent without its authority. It is further contended by defendant that the second Cadillac order was not a “reorder,” for the reason that it specified an entirely different instrument at a different price. It is true that the instrument furnished under the second contract was somewhat modified and was sold for $10 instead of $8. These variations, however, should not prevent recovery if the contract to pay a commission upon all reorders was actually made as claimed by plaintiff. Many authorities are cited in the briefs of counsel upon the question of revocability, but, inasmuch as we are satisfied from an examination of the record the contract was terminated in good faith and for valid reasons, their consideration becomes unnecessary. The judgment is reversed, and a new trial ordered. Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.