Crum v. Murray

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. The defendant’s claim for commissions depends on the construction of the contract. It will be observed that by the express terms of the contract the defendant was to receive “in full pay for such services and for all expenses of procuring, collecting, and remitting the monthly dues the” commissions specified in the contract. It will be further observed that he was to receive these commissions on “dues collected” only, and that he was employed as agent for three years only, with a right of renewal, which seems not to have been exercised. Under this contract he was to be compensated for his services by the commissions specified in the contract on the moneys actually collected by him, and, as he admits that he has received these commissions for the full term of the contract, and for any collections made thereafter, he has no further claims for commissions or other compensation. The witness on behalf of the plaintiff produced the books of the association, and testified there was due from the defendant for money collected, and not remitted, up to January 1, 1896, the sum of $6,852.29; and that, in addition to this amount, he was indebted for excess of commissions retained in the sum of $275.98, and at the conclusion of this testimony is the following record entry: “For the purpose oí the review by the court of appeals sought by defendant, and for no other purpose, he admits that the foregoing evidence was sufficient to establish his liability to plaintiff on account for the amounts therein mentioned and as stated by the witness.” It is thus conclusively established by the defendant’s admission of record that he has been overpaid his commissions on all moneys collected by him. He cannot claim commissions on moneys he never [95] collected, but which he might have collected if he had been retained in (he service of the company indefinitely. By the explicit terms of the contract, his commissions are made to depend on his collection of the money; and when his agency ceased, and he ceased to collect the dues, his commissions ceased. The defendant did not in his answer, nor on the stand as a witness, claim that at the expiration of the three years the contract had been renewed for another period of three years, or for any other length of time, or that he had sought to have it renewed, or that under tiie terms of the contract he was entitled to have it renewed; nor did he set up or claim an illegal violation thereof by the association. His admission of record shows that he was not entitled to a renewal of the contract, and that, if it had been renewed, the company would have had the right to cancel it under the clause of the contract which declares: “A failure or neglect to make reports, or to pay over moneys belonging to the association according to the conditions of tills contract, shall be considered sufiicient reason on the part of the association for canceling the same at any time without notice.” A different question would be presented if the company liad committed a breach of the contract on its part, and discharged the defendant, without sufiicient cause, before the expiration of the term of his contract, or had done any other act inconsistent with the duty it owed him under the contract; but nothing of the kind is alleged or occurred. Tbe defendant continued to serve as agent of the company for the full term of the contract, and for some time afterwards, and has been overpaid the stipulated commissions on all moneys collected by him for the whole time during which he acted as agent. The contract and facts in this case are totally unlike the contract and facts in the case of Newcomb v. Insurance Co., 19 U. S. App. 669, 10 C. C. A. 288, 62 Fed. 97; Id. (C. C.) 51 Fed. 725; and the contract and facts in Wells v. Association, 39 C. C. A. 476, 99 Fed. 222. The case last: cited is an extremely instructive one on the contract there in suit, but the contract iu that and the other case cited hears no resemblance to the contract here in suit. Moreover, in the cases cited the plaintiffs relied on a breach of the contracts by tbe insurance companies, who, it was alleged, had illegally deprived the agents of their business and commissions; but in this case there is no claim that the company committed any breach of the ten ns of the contract, express or implied. Xo contract for an agency extending beyond tbe three years mentioned in the agreement is set: up, and under that agreement the basis of compensation is the commissions specified on the “dues collected” during the continuance of the contract. There is no provision of the agreement, express or implied, giving to the defendant any interest in the business or the commissions on moneys collected by others after the discontinuance of his agency; on the contrary, by the twelfth stipulation of the contract it is provided that “upon discontinuance of this contract all interest of said solicitor hereunder in commissions, dues, renewals,, oi* otherwise shall revert to the said association.” The judgment of the circuit court is affirmed.