Burghart v. Scioto Sign Co., 33403

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWEAVER, C. J.
Citation179 N.W. 77,191 Iowa 384
Docket Number33403
Decision Date29 September 1920

179 N.W. 77

191 Iowa 384



No. 33403

Supreme Court of Iowa, Des Moines

September 29, 1920


Appeal from Linn District Court.--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) 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 and remanded.

Reversed and remanded.

T. C. Mahon and Redmond & Stewart, for appellant.

Dawley & Jordan, for appellee.



[191 Iowa 385] WEAVER, C. J.


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. 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 effort 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 [191 Iowa 386] 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 sent 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 that plaintiff was not working in its interest, and that 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 [191 Iowa 387] reversed in plaintiff's favor, and cause remanded for trial upon the merits. See 179 Iowa 397.

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 it was addressed, to the jury. It is not, however, within the province of this court to interfere with the verdict on such ground.

In the next place, the record shows that, at the instance and request of appellant, the trial court submitted special interrogatories, 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?"

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 [191 Iowa 388] 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 sufficient to require their submission to the jury, which appears to have been fairly instructed thereon.


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