Burghart v. Scioto Sign Co.
| Decision Date | 29 September 1920 |
| Docket Number | No. 33403.,33403. |
| Citation | 179 N.W. 77,191 Iowa 384 |
| Parties | BURGHART v. SCIOTO SIGN CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
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.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.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):
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:
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: 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 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 sufficient to require their submission to the jury, which appears to have been fairly instructed thereon.
[4] II. The second cause of action relied upon by the plaintiff is the alleged damage suffered by her by reason of her wrongful discharge from defendant's service. The jury found for the plaintiff in this respect, and, as appears from its special findings, assessed damages in her favor on this account in the amount of $750. The defendant takes the position that this finding is without sufficient support in the evidence, and we think that the assignment of error in this respect must be sustained. Had plaintiff been employed to serve defendant for a stated wage or salary, her damages, if any, for a wrongful discharge, could be easily ascertained under familiar rules, but, as her compensation was to be in the form of commissions on her sales, her remedy and the measure of her receiving are less obvious. No claim is made in this case for mere loss of time. So far as shown, plaintiff has never been without employment as profitable and desirable as that from which she was discharged. The loss to plaintiff, if any, was not a loss of wages or earnings in the ordinary sense of the term, but a loss of profits (Hichborn v. Bradley, 117 Iowa, 130, 90 N. W. 592), and there seems to be an entire lack of evidence from which such alleged loss can be ascertained with reasonable certainty. It is perhaps possible to reach a fair estimate of the amount of sales made for the defendant by plaintiff and her subagents up to the time she was discharged, and from such fact a somewhat speculative conclusion arrived at as to the business she would have done, and the gross earnings she would have made, in commissions during the remainder of the contract period, and such is the argument on which her counsel rely to sustain the jury's assessment of $750 damages. But it must not be forgotten that, as already suggested, the measure of her recovery, if any, on this item is not the amount of the commissions she had lost, but the amount of profits she would have acquired therein. Manifestly her commissions under the contract of employment were not all profit. She conducted the business of procuring orders at her own expense. The testimony shows that in the work of obtaining orders she presumably traveled from town to town and city to city, soliciting business from customers throughout the state. The...
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