McGeehan v. Gaar, Scott & Co.

Winslow, J. There was considerable discussion, upon iSW argument, as to the effect of the fifth question and answer contained in the special verdict and its evident inconsistency with the answer to the third question of the verdict. To our minds the question is not important. The fifth question was only submitted to the jury in a certain contingency, i. e., if they had already answered the fourth question, and answered it in the affirmative. Inasmuch as it appears that they answered the fourth question in the negative, it is evident that the fifth question was never submitted to th»em by the court, and the question and answer drop entirely from the case and may be disregarded. Upon the plaintiff’s ■ motion for judgment on the verdict the circuit judge wrote a comprehensive and -able .opinion, which is returned with the record, which has been of much assistance to us, and with most of which we fully agree. As to the claims made by defendant that the sale to the Ducketts was not made within the plaintiff’s territory, that the plaintiff had forfeited his right to a commission by endeavoring to sell the Ducketts a Rumley outfit, and that the defendant had a — 635 — right to make tbe sale without liability for commissions because plaintiff had not thoroughly canvassed his territory, the circuit judge makes the following very pertinent remarks, which we adopt as our views on those points: “Was the sale within the plaintiff’s territory ? By the terms of the contract the plaintiff is appointed by the defendant ‘their agent for the sale of the machinery at I)e Pere aforesaid ; said agent to have the privilege of making sales in the vicinity of De Pere aforesaid.’ On the back of the printed form of contract used in this case is printed the following-indorsement : ‘The design of a vicinity contract is to pay an agent the stipulated commission on whatever machinery he may sell under the provisions of the contract, not in the territory of another agent who had the exclusive right to sell in a defined territory.’ “The Ducketts, to whom the machinery was sold, lived in Brown county, thirteen miles from De Pere. De Pere was the market town for those living in their vicinity. Other De Pere agents, and the plaintiff as agent for other companies, had worked that territory as within the De Pere agency. The defendant had another agent at Eeedsville, Manitowoc county. The agent’s contract contained the same provision. The Ducketts lived about thirteen miles or little less from Eeeds-ville, a little nearer Eeedsville than De Pere. The agent at Eeedsville had nothing to do with the sale in question, and did not claim that it was made in his territory or that he was entitled to any commission on account of it. “Counsel for defendant contends that the limits of the respective agencies must be at a point equidistant from De Pere and Eeedsville. But I agree with the plaintiff’s counsel that these contracts are not to be construed as fixing definite limits to the agent’s territory. The agent’s territory is not ‘defined territory,’ within the meaning of the indorsement on the contract. The business of these agencies is not to sit still at some place and sell machinery to those who come to the agent and want to buy it, but to canvass or work their territory; and these ‘vicinity contracts’ are made rather than those with a definite territory on purpose to meet cases of this kind 'where a locality may be more closely connected in business way with any one city or village than another nearer by, and — 636 — to avoid conflict between different agents over border territory; the intent being to give both agents a right to make sales in such localities, and the territory to be considered as belonging to whoever makes the sale. The contract provides that in disputed cases the agent who delivers and settles for the machine shall have the commission. As between plaintiff and defendant, the sale in question was within plaintiff’s territory. “.Does the fact foxuid by the ninth answer in the special verdict show that the plaintiff had forfeited his right to commission on this sale, and that defendant had a right without incurring any liability to him? Fiad the plaintiff’s contract with defendant required him to sell their machines exclusively, it might have had that effect. But the plaintiff had been in the business of selling such machinery for upwards of twenty years. lie did not represent any one company exclusively, but was agent for several. At the time he contracted with defendant he had similar contracts with two other companies, who made and sold similar machines. The defendant knew that fact. The contract was made in reference to it. All that the plaintiff was obliged to do was to treat fairly the defendant, and offer their goods as freely as others. The mere fact that he was trying to make a trade for the Rmnley Company with one of his customers who had a Rum-ley outfit, at the same time he was calling their attention to defendant’s machines as one they might like better, was not a violation of his contract or of his duty to defendant. “The contract reserved to defendant the right to put a canvasser in plaintiff’s territory, and make sales without being responsible to the plaintiff for commissions, if satisfied that the territory was not fully canvassed. There is no pretense that they were so dissatisfied, or that they made this sale through such canvasser.” Having thus disposed of these questions, the circuit judge proceeds to consider whether, upon the facts as disclosed’ by the evidence and found by the jury, the plaintiff is entitled to recover anything. It is unnecessary to recite the facts at length. So far as essential to the discussion, they are brief. McGeehan had tried to sell the Ducketts a new Rumlev outfit, but the negotiations failed. Afterwards the Ducketts saw •a Gaar-Scoii machine at the house of Winkler, a neighbor, — 637 — and on July 27 th one of tbe Ducketts went to De Pere, and' saw McGeehan and offered him $1,300 and their old Rumley outfit for a Gaar-Bcotb outfit, and McGeehan promised to-come out with one of the defendant’s men and see the old Rumley outfit. On the previous day — July 26th — McGeehan had soon Walsh (one of the defendant’s traveling agents) at De Pere, and told him that the Ducketts were thinking of buying a new outfit, and Walsh promised to return to Do-Pere Saturday, and go with McGeehan to see the Ducketts.. It seems that Winkler had before this, of his own motion,, written to defendant’s agent at Eond du Lac about the-Ducketts, and the Pond du Lac agent, on the 28th of July, without knowing of McGeehan s connection -with the affair,, directed Walsh to go to Ducketts, and Walsh on that day went there without McGeehan’s knowledge, and sold the-machine for $1,300 in notes (which have been paid) and the-old Rumley outfit, the market value of which in Brown county was $700. The Rumley outfit was at once taken to Pond du Lac, and some repairs made upon it, and most of it has been-disposed of. Do these facts entitle the plaintiff to recover commissions ?' Upon this question the circuit judge says: “The plaintiff might possibly have sued for damages for breach of contract by defendant in coming into his territory and depriving him of a sale that he could have made and the profits derived 'from it; but that is not this action. Whether such an action could have been maintained it is not necessary to decide. I do not think it could, on the facts proven. Certain instructions printed on the back of the contract are referred to and made a part of it. The following is one of them: ‘When for any cause you decline or delay closing a sale we reserve the right to make the same at our option, without commissions to you, but where such parties have been solicited or their attention called to our machines, by one of our agents, then such agent may on a satisfactory representation of his claim, have such commission as his agency in making the sale will entitle him to, above regular — 638 — net prices.’ This provision is pleaded by the plaintiff, and his right to commission based upon it. lie made no objection to the sale being closed as it was, says that he regarded and treated it as one made through his agency, and about September 1, 1900, he claimed from the defendant his commissions on the sale. “I think that the facts bring the case within the provision, and that the plaintiff is entitled to such commissions as the contract contemplated. The defendant had no right to make the sale, take old machinery in part pay, and require the plaintiff to take it and pay them their net price in cash. Ey the trade with Ducketts the old.outfit became the defendant's property and not the plaintiff’s. They sold and delivered the new outfit for the old outfit and Ducketts’ notes for $1,300, due September 15, 1900. The plaintiff learned'two days later that the sale had been made, and a week or ten ■days later how it had been closed. He made no objection to it. Conceding that he might have tendered defendant their net price for the machine and made the old outfit and notes his, he did not do so. He has treated the sale as one made by defendant, and on which he is entitled by the contract to commission. By this action he has selected his remedy — to sue for commissions due him. I think the case, stands as it would have stood had the plaintiff been with Walsh and con-outfit, or had he said, ‘Go on and make a sale or trade witk-sented to his making.just the trade he did for the Rumley ■out regard to me,’ or T have a purchaser who will pay $1,300 and you take his old machine for the balance. If you will take the old machinery for the balance close the trade.’ ” So far we agree fully with the reasoning of the circuit judge. At this point, however, he says that on such a sale the plaintiff is entitled to receive as his commission all that the defendant, in the exercise of due care and diligence, realized over and above its net price and nothing more. It received $1,300 in cash, and, after* making certain repairs, realized a total net cash of $568.50 and a secondhand engine (value not shown) for the Rumley outfit, making a total of $1,868.50 shown to have been realized by the company. The net price of the outfit sold which the defendant — 639 — was entitled to receive before any agent’s commissions were paid was $1,921. The Ducketts were to pay freight, but declined to do so, and the agent, to settle the dispute, paid $48 freight, making $1,969 which should be paid to defendant before any commission is due. On this basis the defendant is short about $100 of its net price, with the old engine on hand, whose value does not appear; and the plaintiff has not proven himself entitled to any commission because he has not shown that the defendant has received its net price. The judge then goes on to say that if it (the Rumley outfit) “was a salable article having a fixed market value which could be obtained for it by simply offering it for sale in open market, and defendant should have known that fact, it was clearly their duty to have offered it for sale in such market, unless they had good reason to believe that more could be got for it, and they would be chargeable elsewhere with what it would have brought in such market. There are many things which have no fixed market value or ready sale in open market. This is eminently true of old machinery, such as that in question.” Here is the difficulty with the circuit judge’s argument. He says, as matter of law, that secondhand threshing machinery has no market value. We think we should find it very difficult to agree with this proposition in any case, but in the situation of the present case it seems to us utterly impossible. The case was tried to a finish on both sides upon the theory that the defendant was chargeable with the market value, in Brown county, of the Rumley outfit, and that the question of the amount of such value was for the jury. We are unable to perceive now any reason to doubt the correctness of the proposition, but, whether correct-or not, both side.s adopted it on the trial of the case. In addition'to this, by the first question and answer of the verdict it is established as a fact in the case that the old outfit had a market value in Brown county at the time of the sale, and that such market value was $700. We see no escape from the conclusion that — 640 — the fact that it had a market value is absolutely established iu this case, and is not open to question by the trial court or by this court. It is, therefore, settled that the defendant received money and property amounting to $2,000 for the threshing outfit sold to the Ducketts. There is some discrepancy between the parties as to the amount which the defendant is entitled to receive net before any agent’s commissions arise, and the question is not settled by the verdict. Mr. Eischer, the defendant’s general agent at Fond du Lac, who sent Mr. Walsh to the Ducketts, testified that the net price to the company of the outfit sold to the Ducketts should be $1,969. The circuit judge seems to have accepted these figures as the correct figures on the plaintiff’s motion for judgment, and we are inclined to do likewise. On this basis the plaintiff was entitled, under his agency contract, to judgment for $31 commission, and judgment should have been awarded him on the verdict for this sum, with interest. We do not see how, under the provisions of the contract, he is entitled to any larger sum. By the Gourt.- — -Judgment reversed, and action remanded with -directions to enter judgment on the verdict for the-plaintiff in accordance with this opinion.