Burghart v. Scioto Sign Co., 33403.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWEAVER
Citation179 N.W. 77,191 Iowa 384
Docket NumberNo. 33403.,33403.
Decision Date29 September 1920

191 Iowa 384
179 N.W. 77


No. 33403.

Supreme Court of Iowa.

Sept. 29, 1920.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Action at law brought by plaintiff to recover from defendant (1) an amount alleged to be due plaintiff for commissions earned by her pursuant to a written contract between the parties; (2) an amount of damages sustained by plaintiff by reason of her wrongful discharge from defendant's service before the expiration of her term of employment; and (3) for other damages on account of an alleged libel written and published by the defendant concerning the plaintiff.

Issue was taken upon each of these claims, and upon trial to a jury the court sustained defendant's motion to withdraw from its consideration the question of plaintiff's damages for libel. Upon the other issues a verdict was returned for plaintiff for $1,776.40, and judgment was entered accordingly

Both parties have appealed, but, owing to the order in which the appeals were perfected, we shall designate the defendant alone as appellant and plaintiff as appellee. Both appeals will be disposed of in the following opinion. Reversed.

[179 N.W. 77]

T. C. Mahon, of Kenton, Ohio, and Redmond & Stewart, of Cedar Rapids, for appellant.

Dawley & Jordan, of Cedar Rapids, for appellee.


I. The defendant is a dealer in advertising novelties, and the plaintiff a person of considerable experience as a sales agent for that line of goods and merchandise.

[179 N.W. 78]

On October 3, 1908, these parties entered into a written contract by which defendant employed plaintiff as its agent to sell its goods in the state of Iowa and such other territory as might thereafter be agreed upon. The contract was in writing, and provided for payment for plaintiff's services in the form of commissions at specified rates upon sales made or negotiated by her or by her subagents or by others within the described territory.

[1] The writing was drawn upon a blank form containing certain printed matter in which was a provision binding the agent to give to the principal exclusively her entire time and best efforts to the promotion of its business. In the contract as sued upon and as produced by plaintiff in the trial the printed provision above referred to was erased. Plaintiff's evidence is to the effect that this erasure was made at the time of the execution of the contract, and that such provision constituted no part of her agreement. The testimony on part of defendant is to the contrary effect, it being insisted that the contract as executed showed no change or erasure in the printed form. The evidence upon this point was clearly sufficient to take the question to the jury, and for the purposes of the appeal it must be taken as established that the contract was in form and substance as alleged by the plaintiff. By the terms of this agreement the services of the plaintiff were to begin January 1, 1909, and continue for the term of one year. The relations so assumed continued without any serious interruption or misunderstanding until about February 9, 1909, when plaintiff secured from the “Redpath Chautauqua System” an order for 3,000 “horse covers” at an aggregate price of $1,650. This order was to the defendant, but was followed quite soon by a countermand from the Redpath Company. A spirited, triangular correspondence ensued between plaintiff, defendant, and Redpath until on February 23, 1909, defendant wired plaintiff as follows (omitting address and signature): “Return your samples immediately. Your contract is canceled.”

It may also be said here that defendant refused to recognize the right of Redpath to countermand or cancel the order for horse covers, and that such controversy was finally cured by a compromise in which defendant made some concession in the matter of the price to be paid for the goods.

On even date with its telegram discharging plaintiff, defendant wrote her a letter saying it had taken such action because it found plaintiff was not working in its interest, and it “could not get along with her under such conditions.”

Replying to these communications, plaintiff wrote, saying:

“I will not resist the canceling of the contract at all, providing you pay me what I have already earned. There are various matters in last year's work still unsettled. Then I have put four agents at work in the field. Do you propose to cancel their contracts? Or do you propose to continue their work according to this contract? * * * I have discontinued sending orders to you and will instruct my agents to send no more orders to you, but I will not send in your samples until I further hear from you. There is considerable due me, and I propose to have it.”

No settlement being effected, this action was begun, and has now been pending for a period of 11 years. It has been in this court once before, when certain rulings by the trial court were reversed in plaintiff's favor and cause remanded for trial upon the merits. See 179 Iowa, 397, 161 N. W. 458.

[2] The defendant's argument upon its own appeal is very largely devoted to the proposition that plaintiff did not perform her agreement to faithfully serve the interest of her principal, but wrongfully sought to recall the order given for the horse covers, to enable her to deal with some other house from which she could obtain a larger commission, and that by reason of such breach of duty on her part defendant was justified as a matter of law in canceling the contract. There are at least two sufficient reasons why we cannot so hold. The evidence from which this court is asked to draw the conclusion that plaintiff was unfaithful to her employer is not undisputed. If she and the Redpath representative with whom she dealt tell the truth, she did not act in bad faith with defendant, and was in no manner responsible for the countermand or attempted countermand. Her conduct after receiving and forwarding the order is easily explainable on the theory of her natural anxiety to prevent the loss of the business to the defendant, and thereby avoid also the loss of her commission. Even if it may be said that a more uncharitable conclusion could be drawn from the testimony, such contention is one to be addressed, and doubtless was addressed, to the jury. It is not, however, within the province of this court to interfere with the verdict on such ground.

[3] In the next place the record shows that at the instance and request of appellant the trial court submitted special interrogations to be answered by the jury. Among them was the following: “Interrogatory 6. Did the defendant, within the terms of the contract, have a right to terminate and cancel the contract on February 22, 1909?” and to this question the jury answered, “No.” Whether, as an abstract proposition, this question was one which ought to be made the subject of a special finding by the jury we need not consider or decide. It is sufficient that it was submitted at defendant's request, and such a request implies a concession of its propriety for the purposes of the case. Under such circumstances the appellant cannot be heard to

[179 N.W. 79]

ask that the finding shall be disregarded by the court.

We shall not take time to review the record relating to the items of commission which plaintiff claims to have earned and upon which the jury found in her favor. In so far as they were the subject of dispute there was evidence...

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3 cases
  • Manley v. Harer, 5633.
    • United States
    • Montana United States State Supreme Court of Montana
    • April 25, 1925
    ......Brown v. Independent Pub. Co., 48 Mont. 374, 138 P. 258.        In the first ...Burghardt v. Scioto Sign Co., 191 Iowa, 384, 179 N. W. 77; 36 C. J. 1180. ......
  • Ragland v. Household Finance Corp., 50763
    • United States
    • United States State Supreme Court of Iowa
    • February 12, 1963
    ......Hartford Gas Co., 139 Conn. 301, 93 A.2d 292, 295; Haggard v. Shaw, 100 ... performing work in an unworkmanlike manner; Burghart v. Scioto Sign Co., 191 Iowa 384, 179 N.W. 77, a statement ......
  • Burghart v. Scioto Sign Co., 33403
    • United States
    • United States State Supreme Court of Iowa
    • September 29, 1920
    ...179 N.W. 77 191 Iowa 384 CARRIE V. BURGHARDT, Appellee, v. SCIOTO SIGN COMPANY, Appellant No. 33403Supreme Court of Iowa, Des MoinesSeptember 29, REHEARING DENIED APRIL 7, 1921. Appeal from Linn District Court.--MILO P. SMITH, Judge. ACTION at law, brought by plaintiff to recover from defen......

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