Beck v. West

• Decision Date: 23 May 1889
• Citation: 6 So. 70,87 Ala. 213
• Parties: BECK v. WEST ET AL.
• Court: Alabama Supreme Court

6 So. 70

87 Ala. 213

BECK v. WEST ET AL.

Supreme Court of Alabama

May 23, 1889

Appeal from circuit court, Escambia county; JOHN P. HUBBARD, Judge.

Jas. M. Davison and Watts & Son, for appellant.

M A. Rabb for appellees.

STONE C.J.

This action was brought by Beck against West & Co., and claims damages- First, for unpaid commissions on sales made by Beck; and, second, for failing to supply him with expense money, agreed to be supplied, and thereby preventing his performance of the contract, and throwing him out of employment. Other grievances are complained of, but we will show further on that they furnish no ground of recovery. It is said in the bill of exceptions that there was a demurrer and a ruling on it; but, inasmuch as this appears only in the bill of exceptions, we cannot consider it. 3 Brick. Dig. p 78, § 7; Id. p. 705, § 82. The contract, for an alleged breach of which this action was brought, appears to have been made entirely by correspondence. There is no testimony tending to show that the contracting parties ever had a personal interview. Terms were offered by West & Co. which were accepted without modification by Beck. It was the duty of the court to interpret those writings, and hence it became its duty, and not that of the jury, to determine what obligations the writings imposed on each of the contracting parties. We concur with the trial court in holding that no contract was made which bound either party to its observance for a longer term than January 1, 1888. We hold further, that up to that time there was a binding contract requiring West & Co. to give employment to Beck as their traveling salesman, and, in consideration thereof, binding Beck to serve them as a traveling salesman for the same term. Beck's compensation was to be half the profits made on sales effected through his agency, but he was to pay his own expenses, and, with the exception of samples, he was to provide his own outfit. West & Co. were to furnish samples; and, to enable Beck to meet expenses until profits should be realized, they bound themselves to honor and cash his orders to be drawn on them for $50 for every two weeks he should have continuously worked for them in said business. These were not payments to Beck, but loans or advances to be made to him, to be repaid out of his share of the profits on the sale of merchandise he was expected to make. It is manifest that both parties contracted in the honest belief and expectation that Beck's shares of the profits on the sales he would make, would at least equal $50 for every two weeks; and they made no provision for the contingency that they might not reach that sum. Yet West & Co. gave no guaranty as to the amount of the profits Beck should realize. This was left dependent or his success as a salesman. We hold that West & Co. bound themselves to give Beck employment as a traveling salesman until January 1, 1888, to furnish him samples, and to lend to, or advance for him, $50 for every two weeks he was actually engaged in such service. The contract confers no discretion in the performance of these stipulations. And the contract equally bound Beck to serve them as traveling salesman with energy and fidelity; to allow them to retain of his share of the profits until they reimbursed...