Chandler v. Rosewin Coats, Inc.

• Decision Date: 07 October 1974
• Docket Number: No. KCD,KCD
• Citation: 515 S.W.2d 184
• Parties: David CHANDLER, Appellant, v. ROSEWIN COATS, INC., Respondent. 26439.
• Court: Missouri Court of Appeals

Page 184

515 S.W.2d 184

David CHANDLER, Appellant, v. ROSEWIN COATS, INC., Respondent.

No. KCD 26439.

Missouri Court of Appeals, Kansas City District.

Oct. 7, 1974.

Rehearing Denied Nov. 4, 1974.

Herbert M. Rope, Kansas City, for appellant; Rope, Shanberg & Rope, Kansas City, of counsel.

Leonard Rose, Kansas City, for respondent; Sheffrey, Ryder, Skeer, Krigel & Rose, Kansas City, of counsel.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

PRITCHARD, Presiding Judge.

Appellant, a salesman of ladies' apparel, sought to recover additional commissions of $21,533.06 to those paid him by respondent manufacturer in the amount of $7,906.10, as stipulated. The court allowed appellant $7,608.00, plus interest for a total of $8,910.87.

Mention should be made of the appellant's points and authorities which do not at all comply with the plain provisions of Rule 84.04(d), V.A.M.R. that 'The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder. * * * Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.' Appellant's points are abstract, but the noncompliance with Rule 84.04(d) may have been occasioned by his misconception of the scope of appellate review in this court-tried case. The review is not strictly de novo. It is governed by Rule 73.01(d): '* * * The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. * * *.' Curiously, while quoting this portion of Rule 73.01(d), respondent, although not required to file a brief, does so but also makes mostly abstract points, and does not set forth why the trial court did not err in rulings, findings and judgment.

The 'Standard Contract' of the parties is recorded on a printed form of the 'National Association of Women's and Children's Apparel Salesmen, Inc.' It is dated April 16, 1968, and by paragraph 2(a) provides: 'The Company agrees to pay the Salesman as compensation for his services a commission of seven per cent (7%) on the net * * * amount of sales made, shipped and/or distributed into Salesman's territory, consisting of the following states, in which Salesman shall have exclusive territorial rights: Missouri, Iowa, Nebraska, Illinois, Kansas, except for Lyttons of Chicago, Illinois.' Paragraph 2(f) provides: The Company shall have the option of accepting or rejecting any order taken by the Salesman, and no commissions shall be payable hereunder except on goods actually shipped by the Company and received and accepted by the purchaser, provided, however, that the Company guarantees to pay the Salesman commissions on a minimum of eighty-five per cent (85%) of accepted orders, whether shipped or not.' Paragraph 4(a) provides: 'The Salesman agrees to diligently and faithfully work the territory assigned to him in an endeavor to secure business for the Company.' Paragraph 9 provides that the 'agreement and writing constitutes and expresses the whole agreement' and that no alterations or variations should be valid unless in writing and signed by the parties.

Appellant's Point I(A) relates to his claimed de novo review in this court, which is answered above. Point I(B) is that 'The entire course of conduct of the defendant from the inception of the relationship renders its testimony and evidence unreliable; it should accordingly be rejected.' This unspecific point can only relate to the credibility of the testimony, which is solely for the trial court to adjudge under the sharply conflicting testimony on the basic issues in this case. Farmers Mutual Fire & Lighting Ass'n v. La Vallee, 501 S.W.2d 69, 74(3--5) (Mo.App.1973). Point I(C) is 'Notwithstanding plaintiff had the burden of proof, it is ameliorated by the fiduciary relationship of the parties and defendant's breach thereof.' It may be that where, as here, a salesman's commissions are determined upon a percentage or net profits, and the books and records concerning the same are kept by the employer that a trust relationship is raised to disclose the relevant information. Zickel v. Knell, 357 Mo. 678, 210 S.W.2d 59, 62(5--7) (1948). However, it is not suggested by appellant that any record information was withheld from him. He, of course, had the benefit of all the methods of discovery (which were extensively accomplished) under Rule 56 et seq., and under this posture appellant may not claim (and does not show) that respondent breached any duty property to disclose information as to the total of net sales upon which commissions were claimed.

There was evidence as to the custom and practice of respondent's customers to deduct 8% of their billings regardless of when paid. The court determined that 8% for cash should be deducted to arrive at net sales upon which appellant's 7% commissions were to be based, as the term 'net sales' is set forth in the agreement. Respondent's witnesses testified that the 8% deduction was always taken by customers. Such accounts from respondent and received by appellant as were in evidence here shows that the 8% trade discount was always deducted. Appellant conceded that if the customer did not meet the discount date (8% 10 days E.O.M. (end of month) as billed) and had to pay the full amount, then his commission rate would apply to that amount, and that the net amount of sales was the amount paid to respondent--'the calculation of commission is what the company receives.' There was no evidence to the contrary that it was not the custom and practice to deduct the trade discount, nor that it was not always allowed to respondent's customers. Thus, the trial court did not err in computing the amount of commissions due appellant by deducting the 8% trade discount.

It was stipulated that the sales to Brandeis, Omaha, Nebraska, upon which appellant was claiming full 7% commissions, were $65,000.00, rather than $80,000.00, which he originally claimed. The court deducted 8% trade discount from the total amount of sales if found to have been made. Obviously, if appellant's full commission was applicable to the stipulated amount, the deduction was in error. Appellant is entitled to 7% of the $5,200.00 difference, or $364.00 more commission than his judgment provides.

Respondent claimed that it was entitled to deduct from total sales made for commission computations, an allowance for 'off-price' sales, and for merchandise returned to it by its customers. The 'Standard Contract' makes no specific reference to either of those aggregate items. Respondent's witness, Merrill Rose, testified as to 'off-price' sales that he had a conversation with appellant after the signing of the contract: 'I told him, as well as any other salesman with whom we have had dealings, that the payment of commissions on off-price merchandise was more or less left to my discretion. If we took a serious loss on a sale we paid nothing. If it was a loss which--a price which was fairly close to the proper selling price, then in that instance we gave half commission. * * * Q Well, let me put it this way: Were off-price goods sold to customers of Rosewin from time to time in Chandler's overall territory? A Yes. Q Who were the biggest customers of off-price goods in that area? A During the period it was Macy's here in Kansas City and Brandeis in Omaha. Q Are those two accounts...