Benjamin v. Bruce
| Decision Date | 03 March 1898 |
| Parties | BENJAMIN v. BRUCE et al. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city.
Claims were presented for allowance by George P. Benjamin against Bruce, Cook, and others, as assignees for benefit of the creditors of the insolvent estate of Henry Evans, Jr. Other creditors filed objections to their allowance, and, at a hearing, the claims were rejected, and claimant appeals from the order. Affirmed.
Argued before MCSHERRY, C.J., and BRISCOE, BRYAN, PAGE, BOYD FOWLER, and ROBERTS, JJ.
Steele Semmes, Carey & Bond, for appellant. M. R. Walter, J. Hemsley Johnson, and H. N. Abercrombie, for appellees.
The questions presented on the record now before us arise out of the following facts: Henry Evans, Jr., was a manufacturer of tinware in Baltimore, and George P. Benjamin, of New York was a general agent for the sale of various kinds of merchandise. In December, 1885, these two parties entered into an agreement, which is embodied in a letter from Benjamin to Evans, and which, in substance, provided (1) that all goods manufactured by Evans were to be sold through Benjamin, except such as Evans might himself sell in Baltimore city, or might deliver to a designated customer in New Orleans; (2) that all goods were to be shipped upon Benjamin's orders, and were to be billed to him at bottom prices, on 60 days' time, such bills to be subject to a commission of 5 per cent., and to certain additional discounts for cash; (3) that all orders and inquiries as to prices from parties outside of Baltimore were to be referred to Benjamin; and that all acknowledgments of orders, replies and quotations were to be made by him. It was further provided that the agreement could be terminated at any time by either party on giving three months' notice. This arrangement continued in force until September, 1894, when it was modified. By the modified agreement, Evans stipulated to allow Benjamin, on all of Benjamin's orders for Evans' goods, a commission of 5 per cent. "below the lowest price and terms at which I will sell any other parties, excepting C. A. Conklin Manufacturing Company, of Atlanta, Georgia, and Butler Brothers, of New York and Chicago." And Evans further agreed that the prices and terms to these two parties (Conklin and Butler) should not in any case net lower than the prices to Benjamin with the commissions off. This arrangement was to continue for one year, and to be terminable thereafter upon three months' notice. Under the original and the modified agreements, which remained in force until April 26, 1896, a large number of transactions and dealings occurred that have all been adjusted and closed. In the latter part of May, 1896, Evans, becoming embarrassed financially, executed a deed of trust for the benefit of his creditors, appropriating all his assets to the payment of all the "debts" due and owing by him. Benjamin claims to be a creditor of Evans, and the accounts which he has filed are designated "merchandise account" and "commission account." In the merchandise account he demands, under the agreement of September, 1894, on purchases made by him in 1895 and in 1896, the several sums paid by him in excess of the prices charged by Evans, during the same period, to C. A. Conklin, for similar merchandise. The account is made up by deducting from the aggregate of the prices as invoiced to Benjamin, and as diminished by the allowance of commissions, discounts, and freight charges, the amount which would have been chargeable had the same discounts and deductions been allowed to Benjamin that were given to Conklin during the same period, and the difference, after being lessened by a credit, is the sum of $3,500.51; and this is claimed as due on the merchandise account. The commission account consists of a demand for $9,260.96 for commissions on sales made by Evans himself within the territory in which Benjamin insists that he alone had a right, under the original and modified agreements, to make sale of Evans' goods. Other creditors of Evans filed objections to the allowance of these two claims preferred by Benjamin; and after testimony had been taken, and the objections had been heard and considered by circuit court No. 2, both claims were disallowed and rejected. Thereupon Benjamin brought the record by appeal into this court for a review of that decision.
The objections interposed by the contesting creditors are 10 in number, but it is not deemed necessary to set them forth with particularity. They assail the validity of the agreements of 1885 and 1894, as unilateral and without mutuality, and as in general restraint of trade; and they insist that there is no ascertained definite sum due thereunder which constitutes a debt in the sense that the term is used in the deed of trust; and they maintain that whatever may be claimed, if anything, must be in the form of unliquidated damages for a breach of the agreements, and that there has been no ascertainment of these damages, and no evidence adduced to establish the amount or extent thereof.
It must be borne in mind throughout this discussion that the appellant's claims are not for compensation for labor or services actually performed. They do not represent the fruits of an executed contract, where nothing remains to be done but to pay money as a consideration for what has been performed by the other party, but the charges in the commissions on sales Benjamin did not make; and they are claimed, not because they are appropriate or stipulated compensation for work really performed by him, but because Evans violated an agreement not to make sales of his own manufactured articles except through the appellant, in the territory where these sales were effected. A mere glance at the contract of 1885 (the substance of which we have already stated) at once reveals the fact that the obligations which it creates, and the duties which it imposes, are to be performed wholly by one of the parties to it. There is no reciprocal obligation or duty whatever on the other party. Benjamin did not purchase the entire or any portion of the output of Evans' factory, nor did he bind himself to sell or even to attempt to sell the wares and merchandise made by Evans. He literally undertook to do nothing on his part at all as respects the purchase or sale of Evans' commodities. Had he made no sales or sent no orders to Evans, there would have been no breach of the contract by him, because he had made no stipulation to do either; and, had he been...
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