Rehearing
Denied June 15, 1927
Appeal
from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action
by Adams, Rowe & Norman, a partnership composed of W.C. Adams
and E.J. Rowe, against the Alabama Fuel & Iron Company. From
a judgment for plaintiffs, defendant appeals. Affirmed.
Objections
to argumentative questions held properly sustained.
The
contract sued upon is as follows:
"Agreement between Alabama Fuel & Iron Company, a
corporation (herein called the operator), and Adams, Rowe &
Norman, a corporation (herein called the sales agent)
witnesseth:
"In consideration of the mutual promises of the parties
herein set forth it is agreed as follows:
"First. The operator hereby appoints the sales agent its
exclusive agent to sell the entire output of coal produced at
mines owned, controlled, or operated by or for the operator
situated in Alabama, from the date hereof as herein provided.
"Second. The operator now has certain bona fide
contracts covering the sale of part of his output and made
prior to the date hereof, and the sales agent agrees that the
operator shall complete deliveries under such contracts; the
mutual agreement being that the commissions on such coal are
to be paid by the operator to the sales agent, as shown on
Exhibit 1 hereto attached and made a part hereof. On any
renewal of such contracts and on all other contracts or
sales, the operator agrees to pay the sales agent a
commission of 5 cents per ton. All commissions due hereunder
shall be paid to the sales agent at its office in Birmingham
Ala., on or before the 20th day of each calendar month, for
all coal shipped by the operator during the next preceding
calendar month, and shall be based on a ton of 2,000 pounds
according to the operator's invoices therefor to the
purchasers; said invoices shall be according to railroad
scale weights of such coal. Should the operator itself or
through any agent other
than the sales agent sell any such coal produced by or for it
direct to purchasers, the operator agrees to pay the sales
agent a commission of 5 cents per ton for all coal so sold by
or for it, as and at the time the commissions above mentioned
are payable hereunder. If the operator should not be able to
collect for any coal sold hereunder, no selling commissions
shall be payable to the sales agent on the coal not collected
for, and in case such commission has been paid prior to the
time it is found impossible to collect for such coal, the
amount of commission paid on same shall be refunded by the
sales agent to the operator, or, if the operator elects, may
be deducted from any amount then or subsequently due the
sales agent.
"Third. If at the operator's request any sales of
such coal are from time to time invoiced and collections
therefor made by the sales agent, the sales agent agrees to
pay to the operator at its office in Alabama, on or before
the 15th and 30th day of each calendar month, the actual
amount of such collections made during the period from the
date of such preceding settlement to the date of such
settlement, less the sales agent's commission, and the
extra charge to be paid by the operator to the sales agent
for such additional service shall be 2 cents per ton.
"Fourth. Upon the date hereof the operator shall furnish
the sales agent with a schedule of minimum sales prices for
each grade of coal so produced by or for the operator, and
the sales agent agrees that it will not sell any such coal at
prices less than specified in said schedule without the
written consent of the operator. Any changes desired to be
made by the operator in the minimum prices specified in said
schedule shall be binding upon the sales agent forthwith upon
receipt of notice from the operator of such change specifying
grade of coal affected and the minimum price thereof,
provided, however, that spot sales made by the sales
agent's salesmen on the road before such change is
communicated to them shall not be affected thereby.
"Fifth. All contracts for sales of coal hereunder shall
be made for the account and at the risk of the operator, and
no contract shall be binding on the operator until accepted
or approved by the operator.
"Sixth. The operator shall at all reasonable times have
access to the sales agent's records and books of account
for the purpose of checking and verifying the business done
by the sales agent hereunder. The sales agent shall at all
reasonable times have access to the operator's records
and books of account for the purpose of checking and
verifying weights of such coal and the operator's
invoices thereof with reference to the amount of commission
due the sales agent hereunder from time to time.
"Seventh. The sales agent agrees to use its best efforts
to sell the operator's entire output of such coal at not
less than the minimum prices fixed as herein provided.
"Eighth. This agreement shall continue in effect for one
year from the date hereof and thereafter until terminated by
either party hereto by written notice to the other party 60
days prior to the effective date of such termination. In the
event of any such termination, however, the operator agrees
to complete deliveries of all unfilled orders and contracts
sold and negotiated hereunder by the sales agent, and to pay
to the sales agent, as and when herein provided said
commission of 5 cents per ton of 2,000 pounds on all coal
included in such deliveries.
"Ninth. Any notice required or permitted to be given
hereunder may be given by registered mail, addressed, postage
prepaid, and mailed by either party to the other, at its
principal business office, and the date of mailing shall be
considered the date of giving any such notice.
"Tenth. This agreement shall not be assigned by either
party without the written consent of the other party.
"In witness whereof the parties have caused this
agreement to be signed in duplicate by their duly authorized
officials, this 31st day of January, 1919. Alabama Fuel &
Iron Company, Operator, by Chas. F. De Barkelaben, Vice
President. Adams, Rowe & Norman, Inc., Sales Agent, by W.C.
Adams, President."
The
charges refused to defendant and made the basis of
assignments 13, 14, 15, 17, and 18 are as follows:
"(a) If you are reasonably satisfied from the evidence
that the Central of Georgia Railway Company and its
subsidiary companies refused and declined to make the
contracts in question in this suit through Adams, Rowe &
Norman, and declined to make such contracts unless they were
made direct with the Alabama Fuel & Iron Company, and did
make such contracts direct with the defendant, then I charge
you that plaintiff cannot recover commissions on such
contracts.
"(e) If you are reasonably satisfied from the evidence
that Central of Georgia Railway Company did not, in the
making of its contract and the contracts of its subsidiary
companies, deal direct with Adams, Rowe & Norman, but
insisted on dealing direct with the defendant in the final
closing of said contracts, and refused to deal with Adams,
Rowe & Norman, then I charge you that plaintiffs cannot
recover.
"(b) If you are reasonably satisfied from the evidence
that the Central of Georgia Railway Company and its
subsidiary companies refused and declined to make the
contracts in question in this suit through Adams, Rowe &
Norman, and declined to make such contracts unless they were
made direct with the Alabama Fuel & Iron Company, then I
charge you that plaintiff cannot recover commissions on such
contracts, though you may believe from the evidence that
Adams, Rowe & Norman took part in or assisted in preliminary
negotiations in an effort to secure the making of such
contracts.
"C. I charge you that, in order for plaintiffs to be
entitled to commissions on
coal delivered by defendant after the termination of the
agreement between them and defendant, such coal must have
been sold by plaintiffs, and in order for it to have been
sold by plaintiffs an agreement of sale must have been
reached between the buyer and plaintiffs, acting for the
defendant, under which the quantity of coal sold and the
price thereof must have been fixed.
"D. A sale of coal within the meaning of the contract
between plaintiff and defendant would not be made until an
agreement had been reached with the buyer, which fixed the
quantity of the coal sold and the price to be paid for
it."
Assignments
30, 31, and 32 are as follows:
"(30) The court erred in sustaining plaintiffs'
objections to the following question asked witness Adams:
'Q. Do you contend that it was by your efforts alone that
the Central of Georgia Railway Company made these
contracts?'
"(31) The court erred in sustaining plaintiffs'
objections to the following question asked witness Adams:
'Q. Isn't it a fact that it was not by your effort
alone that these contracts were made?'
"(32) The court erred in sustaining plaintiffs'
objections to the following question asked witness Adams:
'Q. Don't you know that the Central of Georgia
Railway Company, as a matter of course, each year buys its
coal from the Alabama Fuel & Iron Company?' "
Percy,
Benners & Burr, of Birmingham, for appellant.
Bradley,
Baldwin, All & White, James D. Rucker, and William Douglas
Arant, all of Birmingham, for appellees.
This
case having been submitted under Supreme Court rule 46, the
opinion of the court was delivered by Mr. Justice GARDNER:
Suit by
appellee against appellant for recovery of commission alleged
to be due under written contract, whereby appellee became the
exclusive sales agent of appellant for the entire output of
its coal mines. Commissions sued for are on sales of coal by
appellant to the Central of Georgia Railway Company
(hereinafter designated...
