Bockemuhl v. Jordan

• Decision Date: 03 May 1955
• Citation: 270 Wis. 14,70 N.W.2d 26
• Parties: Fred A. BOCKEMUHL, Appellant, v. Earl A. JORDAN, Sole Trader d/b/a Jordan Tool & Machine Co., Respondent.
• Court: Wisconsin Supreme Court

Page 26

70 N.W.2d 26

270 Wis. 14

Fred A. BOCKEMUHL, Appellant, v. Earl A. JORDAN, Sole Trader d/b/a Jordan Tool & Machine Co. Respondent.

Supreme Court of Wisconsin.

May 3, 1955.

Charles L. Mullen, Milwaukee, for appellant.

Harry A. Kovenock, Milwaukee, for respondent.

MARTIN, Justice.

Plaintiff's occupation was that of salesman in department stores, shoe stores, clothing and life insurance. In 1948 or 1949, as a side line, he began to solicit orders for tool and machine work on a commission basis. About August, 1950 he entered into an oral contract to solicit such work for the defendant on a five per cent commission. On December 18, 1950 they signed a written contract providing, among other things:

Whereas, Jordan operates a machine shop, designing, manufacturing and repairing dies, tools and fixtures, with facilities for production work, and desires, from time to time, to obtain additional orders for such services and products; and Bockemuhl is an independent sales agent, who desires, as a sideline, to obtain orders, upon a commission basis, for such machinery, services and production by Jordan.

'Now, Therefore, it is agreed as follows:

'(1) Bockemuhl agrees, at his convenience, to call upon and solicit orders for Jordan * * *

'(2) Bockemuhl will not, during the term of this contract and for six months thereafter, solicit orders on behalf of any other firm for services or production which Jordan is equipped to handle, * * *'

On November 1, 1950 plaintiff had entered into a written agreement with National Machine Works to solicit work for that company. The contract provided:

'1. The Company engages the services of the salesman, to obtain orders for Turret-lathe work, general Machine work as well as special machined parts or any other products the Company may from time to time decide to make, until otherwise or a new agreement is mutually agreed upon. * * *

'4. The salesman agrees, that he will not solicit similar work for any other company during the term of this agreement, and any other such solicitation shall be sufficient grounds for the cancellation of this agreement * * *'

The record establishes that plaintiff solicited work for National Machine Works and for the defendant under these contracts.

Para. (2-A) of the contract with Jordan provided:

'Any wilful violation of par. (2) by Bockemuhl during the term hereof shall be just cause for immediate termination of this contract by Jordan upon giving notice thereof by registered mail to Bockemuhl; and any violation during the six months following its termination, shall entitle Jordan, as liquidated damages, to retain the commissions otherwise due to Bockemuhl.'

On February 28, 1951 Jordan wrote plaintiff as follows:

'I believe you are not living up to paragraph (2) of our contract, rather than argue about it I have decided to terminate our contract as of March 28, 1951; under paragraph (5) five. For the nine months after March 28th I will pay you all commissions you are entitled to under paragraph (5) five, but will expect you to comply with paragraph (2) two until the end of September.'

After receipt of the notice plaintiff ceased solicitation in behalf of Jordan. He continued, however, to solicit work for National Machine Works and several other firms.

The primary question of fact for the trial court was whether, after entering into the contract with Jordan, plaintiff solicited for other shops work which Jordan was equipped to handle. Plaintiff testified that Jordan did not want production work, but defendant denied this and the written contract states that Jordan had facilities for production work. Jordan said he had told plaintiff he did not care for certain types of production work, such as automatic and screw machines, which was the type of work plaintiff told him he was getting for National. Plaintiff admitted that he could not accurately tell from shop drawings what machines might be required to do a particular job, but he nevertheless took it upon himself to decide what work Jordan was and was not equipped to do. He made the decision as to whether Jordan could do a job and if he decided that Jordan could not he submitted the job to other machine shops. The record establishes that a substantial part of the business which plaintiff solicited for other companies between December 18, 1950 and September 28, 1951 was work that defendant was equipped to handle.

Defendant testified that when the contract was entered into he knew that plaintiff was soliciting for National Machine Works but that plaintiff told him that company was non-competitive.

There is no question but that plaintiff was under a written contract to solicit exclusively for National Machine Works at the time he made his agreement with Jordan and thereafter. He not only concealed that fact from Jordan but denied it under oath on adverse examination until confronted with a copy. Under para. (2) of the contract with Jordan plaintiff agreed that he would not solicit orders for other firms for work which Jordan was equipped to handle. The trial court's finding that he violated his agreement in that respect is overwhelmingly supported by the record. One of the partners of National testified in detail as to a number of orders obtained by plaintiff and filled by his company during the period in question, work which could have been done on equipment Jordan had in his shop.

In Weinhagen v. Hayes, 1920, 174 Wis. 233, 243, 178 N.W. 780, 784, 183 N.W. 162, 187 N.W. 756, this court said:

'Absolute fidelity and loyalty to the interests of his principal is the first duty and the highest obligation of an agent.'

The rule is given in 2 Restatement, Agency, as follows:

'Unless otherwise agreed, an agent is subject to a duty not to act or to agree to act during the period of his agency for persons whose interests conflict with...