Mahoney v. Lincoln Brick Co.

Citation8 N.W.2d 883,304 Mich. 694
Decision Date06 April 1943
Docket NumberNo. 2.,2.
PartiesMAHONEY v. LINCOLN BRICK CO.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Action by Edward J. Mahoney against Lincoln Brick Company to recover selling commissions allegedly due. From judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Grand Rapids; Thaddeus B. Taylor, judge.

Before the Entire Bench.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellant.

Warner, Norcross & Judd and Joseph Shulsky, all of Grand Rapids, for appellee.

BOYLES, Chief Justice.

Plaintiff appeals from a judgment for defendant, entered by the trial court sitting without a jury.

In April, 1940, plaintiff began the present suit to recover alleged selling commissions claimed to be due him under an oral contracts with defendant. In his declaration plaintiff alleged in substance that he was employed by defendant to sell brick and tile for use in the construction of certain State buildings and that defendant agreed to pay him a selling commission of $2 per thousand on brick and six per cent. on the price of tile sold, that through his efforts defendant sold large amounts of brick and tile, and that defendant refused to pay him for his services.

Defendant admitted that it had made an agreement with plaintiff, but disputed the rate and amount of commission claimed and denied liability for any further amount. As an affirmative defense, defendant claimed that its contract arrangement with plaintiff was void and unenforceable because against public policy. In its answer defendant stated in part:

‘The agreements between plaintiff and defendant were against public policy and illegal and void, because they were bargains for personal, political, oppressive, coercive and other improper influences to be exercised by plaintiff over and upon officers of the government of the State of Michigan and architects and contractors employed by and dealing with the State of Michigan for the purpose of having orders for brick and tile awarded to defendant, and therefore plaintiff is not entitled to recover in this action.’

In his opinion determining the contract between plaintiff and defendant to be void and unenforceable because against public policy, the trial court said in part:

‘From the testimony, the court finds that plaintiff was to receive $2 commission on brick, and 6% on glazed tile, only. * * *

Defendant, however, has interposed another defense, namely that the contract was void because it was against public policy in that it was based upon the political influence to be used by the plaintiff with the State-employed architects. This is the controlling question of the case. Was the plaintiff employed because of his political connections and supposed influence, or was it because of his experience as a brick salesman and his knowledge of the products that he was about to dispose of. * * *

We conclude that plaintiff was employed and the contract consummated because of the plaintiff's supposedly or known political connections and influence. It was completely surrounded with political implications and suggestions from its very inception and being so conceived, we must declare the contract unenforceable.’

Judgment was entered for defendant, and plaintiff appeals, contending that the trial court erred in determining the contract to be void as against public policy.

The record shows that in 1938 the State of Michigan was engaged in an extensive building program in connection with certain public institutions, including the Ionia State hospital, Traverse City State hospital, Kalamazoo State hospital, Wahjamega State hospital for epileptics, and Mt. Pleasant home and training school. The State had entered into contracts with several different contractors for the construction of the proposed buildings to be built on State property and owned by it. Through its administrative board the State had employed architects to prepare plans and specifications and to supervise the construction of such buildings. In August, 1938, defendant was engaged in the business of selling brick and tile, as representative or agent for manufacturers, and desired to sell such products to contractors for use in construction of the proposed State buildings.

Plaintiff's business activities prior to August, 1938, had been somewhat varied. He had been employed by a railroad company and thereafter for about seven years in the purchasing department of an automobile plant; he had been engaged for some time in the building construction business; he had been employed by the State liquor control commission and by the United States treasury department; he had been engaged in the retail store business; he had sold coal, cement, office supplies, machinery, and other merchandise to the State of Michigan; and had also represented an Ohio brick company for a short time.

In August, 1938, one George Kruer, president and principal stockholder of defendant company, sought out plaintiff, and they had several interviews resulting in the oral contract in question. The testimony of plaintiff and Kruer is conflicting in generalas to the intent, purpose and terms of such contract. As the validity of the oral contract is the principal question in this case, we shall set forth at some length the testimony of plaintiff and Kruer. Plaintiff testified in part:

‘I became acquainted with Mr. Kruer in August, 1938. I first met Mr. Kruer at the Roosevelt hotel at Lansing. At that time I was representing the Ohio Brick Company. I had sold two jobs on State buildings. I was not engaged in any other employment outside of selling brick in August, 1938; that was my entire activity, at that time. * * *

‘* * * After we (Kruer and plaintiff) were introduced he advanced the proposition that I come with his company to sell brick and tile around these State jobs. * * *

‘After the first visit I saw Mr. Kruer early the next following week. He came to Lansing. I think he saw me at the Roosevelt hotel, near there, somewhere around there. At the time I told him, ‘All right.’ * * *

“I will go along with you and sell your brick.' * * *

‘Nobody was present at either of our conversations outside of the two of us. There was no arrangement made at that time as to what I was to receive for my services, but there was an arrangement made as to what I should do. I was to contact the architects on all these State jobs and work with them, and Mr. Kruer said he would work with the contractors. That was the talk. I was to get paid for brick and tile that was sold on these State jobs. * * *

‘On all brick and tile sold, whether sold by myself through the architect or through Mr. Kruer to the contractor. * * *

We had no understanding about selling brick to anybody except public institutions. * * *

‘The next time I saw Mr. Kruer was shortly afterwards. * * *

‘I had this talk with Mr. Kruer about those jobs in the dining room in the Morton hotel (Grand Rapids). * * * He said to me, ‘Now then what commission do you want on the brick?’ I said, ‘Two dollars a thousand.’ He said, ‘All right,’ and he asked me if six per cent would be O.K. on tile; I said, ‘Yes,’ and we agreed on six per cent on tile and two dollars a thousand on brick.'

On cross-examination, plaintiff testified in part: ‘I first met Mr. Kruer of the Lincoln Brick Company at the Roosevelt hotel at Lansing. At that time I was in the hotel room we had there, in Mr. George Schroeder's office. At that time Mr. Schroeder was a member of the State legislature; he was speaker of the house, * * * At that time I did not tell Mr. Kruer that I had considerable political influence. * * * And I didn't have any influence whatsoever with any other administrative officials in the democratic party, nor with the heads of any of the departments; didn't have the slightest influence. * * * At any of the later meetings I never told him I had any influence with department heads or with the administration. He always inferred it but I didn't say it.’

In fairness to Mr. Schroeder, no claim has been made that he was a knowing participant in any improper dealings. Mr. Kruer, the president of defendant company, presented an entirely different version of the oral contract in question. He testified in part:

‘I met him (plaintiff) in the Roosevelt hotel, Lansing, in the headquarters of Mr. George Schroeder, political headquarters. * * * I had never known him before that time. * * * He (plaintiff) told me that he did have political connections with the administration, that he could do me some good. I told him that I wanted to sell brick and glazed tile on certain institutions, and he said well he thought we could get together on that. * * * He said that he had political connections that he thought he could do me some good. * * * He said he was connected very closely and of course it was very evident that he was. * * *

He said he was very close to George Schroeder, that he was close to the governor, * * * and that he was close to a number of the boys, as he called them, that did things in Lansing. * * * The commission on the glazed tile was to be six per cent, and the commission on face brick was to be one dollar per thousand and not two dollars. * * * We made an arrangement to go and see Architect Sorenson in Detroit. * * * We went up to Mr. Sorenson's office and Mr. Mahoney and Mr. Sorenson stepped in another room and they apparently talked in there. * * * I asked Mr. Mahoney what had transpired. He told me that he had told Mr. Sorenson who he was and that he represented the crowd at Lansing, * * * he did infer that he was very-was referring to the powers in authority at Lansing, and that he had sold Mr. Sorenson on the idea of playing ball, and I asked him what he meant by ‘playing ball.’ Well he said he will see that you get this face brick. * * * That connection there resulted in our getting the face brick job at the Wahjamega State hospital. * * *

‘Our agreement was to work out each individual job as we went along, and based on his...

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