189 F.2d 213 (8th Cir. 1951), 14225, Traylor v. Black, Sivalls & Bryson

Docket Nº:14225.
Citation:189 F.2d 213
Case Date:May 10, 1951
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 213

189 F.2d 213 (8th Cir. 1951)




No. 14225.

United States Court of Appeals, Eighth Circuit.

May 10, 1951

Page 214

Marcy K. Brown, Jr., Kansas City, Mo., for appellant.

Donald W. Johnson, Kansas City, Mo. (George L. Gordon and Kem, Gordon & Gilmore, all of Kansas City, Mo., on the brief), for appellee.

Before COLLET and STONE, Circuit Judges, and DELEHANT, District Judge.

DELEHANT, District Judge.

This is an appeal from a summary judgment rendered by the district court in favor of the appellee upon its motion therefor under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. We are persuaded that the trial court erred in granting the summary judgment.

Appellant instituted the action in the Circuit Court of Jackson County, Missouri, to recover commissions allegedly due him from the appellee as a part of his compensation for having procured, in pursuance of a written sales agreement, certain orders for the purchase of products manufactured and marketed by the appellee. His petition alleges that the appellee, a Delaware corporation, on August 23, 1946, succeeded through a corporate merger agreement to all rights and interests in Black, Sivalls and Bryson, Inc., a Maine corporation, (hereinafter referred to as 'the corporation') engaged in the manufacture of various steel products, and assumed all of the corporation's outstanding liabilities; that, theretofore, and on January 1, 1943, the corporation entered into a sales agreement in writing with appellant whereby appellant was employed to procure, within territories specified in the agreement, orders for the products manufactured and marketed by the corporation and, as compensation therefor, was to receive a salary of $200.00 per month, plus necessary automobile, traveling and miscellaneous expenses, and a commission at the rate of five per cent on all orders obtained by the corporation, payable on or before the 15th day of the calendar month with respect to all orders which had been invoiced in the previous month; that appellant thereafter faithfully performed his duties under the contract and, between the dates of January 1, 1946 and July 1, 1946, while the contract still remained in full force and effect, secured four orders from the Socony-Vacuum Oil Company and two orders from the Skelly Oil Company for oil storage tanks of various designated types, having, according to the price schedules of the corporation then in effect, a total sale price of $317, 522.00; that all of those orders were accepted by the corporation and delivered, with invoices, to the purchasers thereof, and that the corporation thereby became indebted to the appellant in the total sum of $15, 876.10, only $2, 952.24 of which has been paid to appellant, leaving a balance of $12, 923.86 due to him. The petition also claims the right to recover certain sums representing salary which allegedly were unpaid; but, as will presently be seen, appellant appears to have withdrawn this claim, in large part, if not entirely.

The appellee took steps to remove the case to the United States District Court for the Western District of Missouri, Western Division, whose adequacy was not challenged in that court, and which, on this appeal, are formally asserted by both parties validly to have effected the removal. Whether the procedure for removal actually pursued was statutorily allowable at the time it was followed may reasonably be doubted. However, the action was clearly removable, Title 28 U.S.C.A. §§ 1332(a)(1) and 1441(a). And the failure to question, and the actual approval by the parties of, the procedure taken to achieve removal are sufficient to waive any 'modal and formal' infirmities in that procedure. We raise no question concerning it.

Thereafter, appellant served upon appellee and filed with the court written interrogatories pursuant to Rule 33, Federal Rules of Civil Procedure; and answers thereto, together with exhibits requested by the appellant or explanatory of the answers, were served and filed by the appellee.

Page 215

Appellee's amended answer admits the execution of the sales agreement on January 1, 1943, but denies the other principal allegations of the petition and the procurement by the appellant of one of the alleged orders of the Socony-Vacuum Oil Company, alleges that all commissions owing to the appellant by the appellee have been fully paid and discharged, and, of most significance in the determination of the matters presented by this appeal, sets up as separate defenses two alleged contracts between the appellant and the corporation under dates of June 29, 1946 and July 26, 1946, respectively, which have the ostensible effect of modifying the sales agreement of January 1, 1943. The first of those alleged contracts purports to be an agreement whereby, in the event that two orders by Socony-Vacuum Oil Company (being specifically described in the contract and two of the orders alleged in the petition, the procurement of which by appellant is not denied) shall be accepted by the corporation, the appellant agrees to accept and the corporation agrees to pay a commission of 2 1/2% on the gross amount of one of the orders, or $1, 449.50, and a commission of 1% on the gross amount of the other order, or $1, 142.20. The contract states that the corporation is 'in the process of determining whether or not it will accept said orders, ' and also declares that the commissions in it set forth 'are in lieu of all other commissions of any kind or amount, including those set forth in the Sales Agreement of January 1, 1943, ' but that 'except as amended by this Agreement, the Sales Agreement of January 1, 1943, shall as to all its terms and conditions remain in full force and effect.' The consideration for the corporation's promise to pay and appellant's agreement to accept the newly stipulated commissions is expressly stated to be the acceptance of the orders by the corporation. The second alleged contract is in the form of a letter addressed by the corporation to the appellant and subscribed to by him in purported acceptance of its contents. The letter contains an agreement, which is stated to conform to prior verbal agreements between its corporate writer and its addressee, whereby, in consideration of the appellant's acceptance of the termination of the sales agreement of January 1, 1943, and of commissions thereafter set forth in the letter, and his waiver of a thirty day written notice of termination provided by the sales agreement, the corporation agrees to accept the orders and pay the commissions thereafter listed. Among the orders then listed are the three orders by Socony-Vacuum Oil Company, whose procurement by the appellant is not denied, and the two orders by the Skelly Oil Company alleged in the petition. The rate of commission undertaken to be paid on the two Socony-Vacuum Oil Company orders dealt with in the contract of June 29, 1946, is the same as provided in that contract, but an adjustment in the gross amount of those orders results in listed commissions of $1, 462.00 and $1, 142.30, respectively, instead of the sums stipulated in the contract of June 29, 1946. The rate of commission to be paid on the third order by the Socony-Vacuum Oil Company is listed as five percent. Full payment by appellee to appellant of the commissions so listed in the modification contracts to...

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