Brockway v. Blair
| Decision Date | 19 May 1917 |
| Docket Number | 3768. |
| Citation | 165 P. 455,53 Mont. 531 |
| Parties | BROCKWAY v. BLAIR. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Geo. W. Pierson Judge.
Action by B. G. Brockway against H. B. Blair. Judgment for plaintiff, and defendant appeals. Affirmed.
Miller & O'Connor, of Livingston, for appellant.
Nichols & Wilson, of Billings, for respondent.
In this action, plaintiff seeks to recover commissions alleged to be due upon the sale of three automobiles, under the following written agreement:
By R. H. Bishir.
B. G. Brockway, Second Party."
The circumstances under which a car was sold to Allard, one of the purchasers, will illustrate the three sales involved in this controversy. Cettergren was Brockway's agent at Laurel, and Bishir and Green were Blair's agents who worked to some extent in that vicinity. Cettergren testified that he made several trips to see Allard concerning the sale to him of a Reo car; that he demonstrated the car to Allard several times; that he took Bishir to Allard, and Bishir demonstrated the car to him; that afterwards and on the day Allard expressed his intention to purchase a car he introduced Green to Allard; that a sale was then completed by Green, who delivered the car to Allard. On cross-examination, the witness said:
From the fact that a general verdict was returned in favor of plaintiff, we must assume that the jury accepted this testimony as true, so far at least as it tends to disclose the part which Brockway's agent played in effecting the sale. It is apparent that the efforts of Cettergren alone did not produce the sale, neither did the unaided efforts of Blair's agent effect it. The sale resulted from their combined efforts.
Upon the theory that the agreement does not in terms expressly cover the case, the court permitted evidence to be introduced to the effect that it was understood by both parties, at the time the contract was executed, that Brockway was not expected to go out and complete the sales by his own unaided efforts; that, if it was necessary for him to have the assistance of Blair's agents in the community to close or complete a sale, such assistance would be furnished as a part of Blair's obligation under the contract; and that this understanding was carried into effect in making the sales which furnish the foundation for this controversy. The admission of this evidence is specified as error--as violating the provisions of sections 5018 and 7873, Revised Codes, which, so far as applicable here, are to the effect that, when the terms of an agreement have been reduced to writing by the parties, no evidence is admissible of the terms of the agreement other than the contents of the writing itself. "The full substance of the evidence admitted" is not quoted as required by Rule 10, subd. "b," of the rules of this court (123 P. xii), and the attention of counsel is directed to the fact that these rules are to be honored by their observance--not by their breach.
It is the contention of appellant that, under the terms of the agreement, Brockway was not entitled to any commission unless and until he made a sale complete in itself or made a contract of sale under which Blair could maintain an action for damages in case the prospective purchaser failed or refused to take the car. In other words, it is appellant's contention that the terms of the contract are explicit; that they interpret themselves and leave no room for the application of rules of construction or the introduction of evidence explanatory of the circumstances under which the agreement was made.
If the sale had been made by the unaided efforts of Brockway or his agent, there could not be any question of plaintiff's right to the commission. If the sale had resulted from the unaided efforts of Blair's agents, Brockway could not lay claim to the commission, for the contract did not give him exclusive territory. But what are the rights of the parties under the contract as they apply, or can be made to apply, to the Allard sale? Sections 5018 and 7873, above, refer to contracts complete in themselves and free from ambiguity and uncertainty. Sections 5025, 5030, 5036, a...
To continue reading
Request your trial