Laster v. R. &. V. Motor Company, a Corp.

• Decision Date: 09 February 1925
• Citation: 269 S.W. 665,219 Mo.App. 211
• Parties: J. W. LASTER, Respondent, v. R. &. V. MOTOR COMPANY, a Corporation, Appellant.
• Court: Kansas Court of Appeals

269 S.W. 665

219 Mo.App. 211

J. W. LASTER, Respondent, v. R. &. V. MOTOR COMPANY, a Corporation, Appellant.

Court of Appeals of Missouri, Kansas City

February 9, 1925

Appeal from the Circuit Court of Jackson County.--Hon. James H Austin, Judge.

AFFIRMED.

Judgment affirmed.

Chas M. Bush and R. W. Crimm for respondent.

P. J Hodgins and O. C. Phillips for appellant.

OPINION

ARNOLD, J.--

This is an action for commission alleged to be due plaintiff on the sale of thirty-eight automobiles, under an oral contract of employment. Defendant is a corporation engaged in the manufacture and sale of automobiles, with its principal offices at East Moline, Illinois. Plaintiff is an automobile salesman of Kansas City, Missouri.

The petition alleges that on or about February 11, 1922, defendant, acting through its duly authorized agent, employed plaintiff as a salesman to sell all or any part of thirty-nine Saxon Duplex automobiles 1922 make, then on display at its sales rooms at 1701 Grand avenue in Kansas City, Mo., and agreed to pay him a commission of five per cent of the purchase price of any and all of said automobiles for which he found buyers, or to whom he sold the cars; that pursuant to said employment plaintiff found a purchaser for thirty-eight of said automobiles in the person of C. H. Smith who was willing and able to purchase said automobiles at and for the price of $ 21,000, the price asked by defendant, and did sell to said customer all of said thirty-eight cars for said sum; that said automobiles were delivered to said purchaser for cash and plaintiff thereby became entitled to five per cent of said $ 21,000 from defendant, and defendant became obligated to pay said sum to plaintiff; that demand has been duly made therefor and payment has been refused. Judgment is asked in the sum of $ 1,050 together with interest and costs of suit.

The answer is a general denial and an admission of defendant's corporate existence. As further answer defendant specifically denies that it ever engaged or employed plaintiff as the petition alleges, or that plaintiff rendered the services claimed, and denies that it is indebted to plaintiff in any sum.

The defendant R. & V. Motor Company was a corporation engaged in the manufacture and sale of automobiles at East Moline, Ill., and maintained a sales office at 1906 McGee street in Kansas City, Mo. Another corporation, called the Root & Van Dervoort Engineering Company engaged in the manufacture of gasoline motors for automobiles and tractors had its plant on the opposite side of the street from the R. & V. Motor Company in East Moline, and the two companies used the same offices and appeared to have had the same officers. In February, 1922, one B. N. Ward, a salesman for the R. & V. Motor Co. was instructed by H. A. Holder who was president of both corporations, to go to Kansas City, Mo., and dispose of forty Saxon cars which one of said corporations had acquired. These cars previously had been shipped to Kansas City, and were stored in the warehouse of the R. &. V. Motor Company on McGee street, but for the purpose of the sale Ward used a salesroom at 1701 Grand avenue.

Ward was accompanied to Kansas City by on C. L. Walker, assistant secretary of the Root & Van Dervoort Engineering Company and factory manager of the R. & V. Motor Company at East Moline, Ill. Walker and Ward advertised in local newspapers for salesmen, and also sent circulars to automobile dealers throughout the Kansas City territory. Personal letters also were sent out to approximately 1500 dealers calling their attention to the cars. Some six or seven of the cars were placed upon the floor of the display room and the price of each particular class of car was marked upon the windshield of its sample. Seven to ten stock cars were also placed in a back room. Pursuant to the advertisement Ward employed a number of salesmen, including plaintiff, and the cars were placed on display. There is no dispute that Ward agreed to pay each salesman, as commission, five per cent of any sales made at retail by such salesman.

G. L. Walker remained in Kansas City to assist Ward in disposing of the cars. The sale was opened on Monday and in the afternoon of the following day, pursuant to one of the circular letters, one C. H. Smith of Independence, Kansas, a dealer in automobiles, came to the display room and was met by plaintiff who showed him the cars and quoted the prices. Smith told plaintiff that he would be interested in buying all the cars if a satisfactory price were named for them. Plaintiff named twenty per cent off the marked price, but this was not satisfactory to Smith. Plaintiff then stated he had no authority to name any other price and the matter would have to be taken up with Mr. Ward who was ill at his hotel. It is in evidence that plaintiff introduced Smith to Walker and that Walker, in turn, introduced him to Ward. The deal then was consummated between Ward and Walker on the one side and Smith on the other, whereby for the sum of $ 21,000, the entire remaining stock of thirty-eight cars was sold to Smith for cash.

It was agreed that the various salesmen divide their time between working outside and on the sales floor, and each salesman had what was called a "floor day." Plaintiff was one of the salesmen on the floor at the time Smith entered. Plaintiff testified he quoted Smith the price of twenty per cent off, as per instructions from Ward, and that they sat in the back of a car and "dickered," and thereafter the deal was handled as above stated.

Edgar L. Miller, another salesman, who was present at the time of plaintiff's employment, testified as to the contract of employment that "we were to be given five per cent commission on all automobiles that we sold." This witness had sold one car at retail, and testified that he was paid the five per cent commission thereon, by check signed by the R. & V. Motor Co., defendant herein. He also corroborated plaintiff in the matter of details of the occurrences and conversations attendant on the sale to Smith. He also testified that "an automobile salesman considers everybody a prospect that he talks to, and when we get floor days, if anybody buys cars, he is considered a prospect of his no matter who helps him sell . . . the customs are that on what we call floor days, the salesman has floor day and anything that is sold in the house--say there are two men on the floor. Now, anything that is sold by that man or whoever sells it, regardless of if he is the manager of whatever it is, this salesman gets commission on it. That is a rule among automobile salesmen."

Plaintiff testified that he was told by Ward that the commission would be five per cent on all sales made and "if you can get a man to buy the whole bunch, see me, and we will figure him a good price." The testimony of Smith who bought the cars is that when he went into the place the first man he saw was plaintiff whom he had known for sometime; that plaintiff asked him if he was in the market for a car, to which he replied that he was not, but that he would consider buying the whole lot if he could "buy them worth the money." That he was then introduced to Mr. Walker by plaintiff. Smith was defendant's witness.

Plaintiff further testified that at the time of his employment Ward said to him: "Any man that you talk to and they come back and you are not here, we will sell them, and you will get your full commission, as he is your customer." Plaintiff's testimony further tended to show that at the time of his employment nothing was said about whether he was to sell at retail or wholesale. Defendant's testimony was to the effect that the commission was to be paid salesmen on retail sales only. Further, the testimony of defendant was to the effect that the cars were the property of the R. & V. Engineering Company and that the defendant R. & V. Motor Company had no interest in them. Mr. Ward testified that the contract made with salesmen was expressly limited to retail sales and that any wholesale customers were to be turned over to him; that salesmen had nothing to do with the sale of cars at wholesale; that after the offer from Smith for the entire lot was received, it was necessary to take the matter up with the R. & V. Engineering Company before naming a figure.

The cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $ 1130.15. After an unsuccessful motion for a new trial judgment was entered in accordance with the verdict and defendant appeals.

Defendant first charges the court erred in refusing to sustain its demurrers offered at the close of plaintiff's evidence and again at the close of the case, and argues (1) that there was no competent evidence that defendant was a party to the contract; (2) that the testimony of the alleged agents was of no evidentiary value; (3) that the purchaser was not procured, nor the sale made, by plaintiff; (4) that evidence of custom does not establish plaintiff's right to recover.

Defendant's position is that the only effort made by plaintiff to show that Ward and Walker represented defendant was to present...