Bracewell v. Bryan
| Citation | 57 Ala.App. 494,329 So.2d 552 |
| Parties | Hiram BRACEWELL, Individually, and Southeastern Cabinet Company, a Subsidiary of Bracewell Homes Corp. v. Kenneth BRYAN. Civ. 598. |
| Decision Date | 31 March 1976 |
| Court | Alabama Court of Civil Appeals |
J. Ronald Storey, Dothan, for appellant.
J. R. Herring and Buntin & Cobb, Dothan, for appellee.
This is an appeal from a jury verdict and judgment thereon in the Circuit Court of Houston County.
The jury found in favor of plaintiff-appellee Kenneth Bryan on the fraud count of plaintiff's complaint, and against defendant-appellant Hiram Bracewell, individually, and d/b/a Southeastern Cabinet Company. Defendant prosecutes this appeal.
The issues on this appeal are whether the learned trial court erred by not granting defendant-appellant's motions for a directed verdict and for judgment notwithstanding the verdict or a new trial.
The pertinent facts as revealed by the record are as follows:
The defendant Southeastern Cabinet Company is a cabinet manufacturing concern and a wholly owned subsidiary of Bracewell Homes Corporation, a corporation. Hiram Bracewell is the major stockholder of Bracewell Homes, and president of Southeastern Cabinet Company.
Plaintiff Bryan in April of 1972 applied for and subsequently obtained employment with Southeastern Cabinet Company. After approximately one year, his employment was terminated. His contentions are that at the time he was hired he was promised a 4% Commission on all sales he made, that he did in fact make sales, and that he never received the promised commissions.
Defendant argues that Bryan was never promised any commissions, was not hired as a salesman, and never made any sales for the company.
Bryan testified that he was informed the company was looking for a salesman when he first applied for employment. He further testified that when he was hired he was told by Bracewell he would begin selling after an initial training period, for which sales duties he would receive a salary plus a 4% Commission, use of an automobile, and reimbursed expenses.
Further testimony by Bryan was that he made substantial sales of cabinets to contractors engaged in various construction operations.
Bryan also testified as to certain remarks made by his superiors at the company concerning commissions. On more than a dozen occasions he asked his immediate supervisor, Larry Maynard, sales manager of the company, when he would begin receiving his commissions. Maynard replied Bryan would have to discuss the matter with Bracewell. Bryan on one occasion made the same inquiry of Maynard's superior, one Barrett, who responded he did not know what was going on. After Bryan had been employed for approximately six months, he was summoned by Bracewell, who informed him the cabinet business was apparently going to make it and that his commissions from that point on would vary.
As stated earlier, after about one year of employment Bryan was fired by Maynard the sales manager. Bryan testified that after he was fired he asked Bracewell for his commissions and was informed he was owed no commissions.
Bryan's father testified he had a telephone conversation with Bracewell shortly after Bryan applied for employment. Bracewell during this conversation discussed Bryan's then prospective employment with Bryan's father. The father testified that Bracewell stated Bryan would be paid a commission.
The defendant's testimony, through Bracewell, Barrett, and Maynard, was substantially that Bryan had never been promised commissions, was never employed as a salesman, and had never in fact made any sales. The testimony was that Bryan's duties involved preparation and submission of bids to contractors, but that he never actually made any sales of cabinets to those contractors.
Maynard further testified that any discussions he had with Bryan concerning commissions were purely of a speculative nature.
Bracewell testified he had discussed commissions with Bryan and Bryan's father. However, his testimony was that he told them Bryan would be paid commissions only when he had gained sufficient experience to earn his living strictly from commissions, and when Bryan was in fact placed on such a basis.
The case was submitted to the jury on two contract counts, each alleging defendant owed plaintiff $8,000 in commissions, and one fraud count claiming $8,000 compensatory and $50,000 punitive damages. The jury found for plaintiff on the fraud count and fixed his damages at $10,000. Judgment was entered on the verdict, and defendant appeals therefrom.
Defendant initially contends the trial court erred in allowing the case to go to the jury on the issue of fraud. The same contention is made as regards the issue of punitive damages.
The evidence is in conflict as to whether Bryan was employed as a salesman and made sales, and as to whether he was promised commissions. The resolution of conflicting evidence is the province of the jury. See 18A Ala.Dig. Trial Key 143 and cases cited thereunder. The determinative issue is thus whether the evidence is sufficient to support a finding of fraud.
It is settled law that for fraud to be predicated on a promise, the promisor at the time of making the promise must have intended not to perform it and to deceive the promisee thereby. Walker v. Woodall, 288 Ala. 510, 262 So.2d 756; Nelson v. Darling Shop of Birmingham, 275 Ala. 598, 157 So.2d 23.
The existence Vel non of an act of fraud is generally a fact question for the jury. Mid-State Homes, Inc. v. Holt, 52 Ala.App. 415, 293 So.2d 476. This is particularly so with regard to the element of intent. As our supreme court said through Chief Justice Heflin in Walker v. Woodall, supra:
(288 Ala. at 513, 262 So.2d at 759) The failure to perform alone is not of itself evidence of intent not to perform at the time the promise was made. Brock v. Brock, 90 Ala. 86, 8 So. 11. However, such failure may be considered together with other circumstances in reaching the determination as to whether the requisite intent existed at the time the promise was made. Brock v. Brock, supra; 37 Am.Jr.2d Fraud and Deceit §...
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