Clarkson v. Standard Brass Mfg. Co.

• Decision Date: 01 March 1943
• Docket Number: No. 20203.,20203.
• Citation: 170 S.W.2d 407
• Parties: W.R. CLARKSON, RESPONDENT, v. STANDARD BRASS MANUFACTURING COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

170 S.W.2d 407

W.R. CLARKSON, RESPONDENT, v. STANDARD BRASS MANUFACTURING COMPANY, A CORPORATION, APPELLANT.

No. 20203.

Kansas City Court of Appeals, Missouri.

March 1, 1943.

Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.

REVERSED AND REMANDED.

H.B. (Jack) Manard, Fisher & Fisher and Calvin & Kimbrell for appellant.

(1) Plaintiff was not entitled to recover for the reason that the testimony did not show a compliance by plaintiff with the terms and conditions of the contract between him and the defendant; and did not show that plaintiff was entitled to a commission on the sales made by the defendant to the Whitaker Battery Supply Company. 2 C.J., p. 768, et seq.; Tant v. Gee, 154 S.W. (2d) 745, 747; Smith v. Allgier, 234 Mo. App. 392, 135 S.W. (2d) 43, 50; Cook v. Harrington (Mo. App.), 54 S.W. (2d) 436, 439; Gibson v. Pleasant Valley Development Co., 320 Mo. 838, 8 S.W. (2d) 828; Westerman v. Peer Investment Co., 197 Mo. App. 278, 195 S.W. 78; Young v. Stecher Cooperage Works, 259 Mo. 215, 168 S.W. 611; Norman v. Vandenberg, 157 Mo. App. 488, 492, 138 S.W. 47; Hughes & Thurman v. Dodd, 164 Mo. App. 454, 146 S.W. 446, 447. (2) The plaintiff, having called as his witnesses R.E. Normandie and T.H. Stuver, is bound by their testimony. Klotsch v. P.F. Collier & Son Corporation (Mo.), 159 S.W. (2d) 589, 594; Rucker v. Alton R.R. Co., 343 Mo. 929, 934, 123 S.W. (2d) 24, 26; Platt v. Platt, 343 Mo. 745, 746, 123 S.W. (2d) 54, 55; Smith v. Met. Street Ry. Co. (Mo. App.), 201 S.W. 569; Manchester Bank of St. Louis v. Harrington (Mo.), 199 S.W. 242, 248. (3) Since the contract, in question here, was for an indefinite period of time and imposed no obligation in perpetuity, it could have been terminated, without liability, at the will of either of the parties thereto. Paisley v. Lucas, 346 Mo. 827, 843, 143 S.W. (2d) 262, 271; Massachusetts Bonding & Ins. Co., v. Simonds-Shields-Lonsdale Grain Co., 226 Mo. App. 1071, 1078, 49 S.W. (2d) 645, 648; Latshaw v. Stoddard (Mo. App.), 194 S.W. 727, 728; Staroske v. Pulitzer Publishing Co., 235 Mo. 67, 77, 138 S.W. 36, 39; Maccalum Printing Co. v. Graphite Compendius Co., 150 Mo. App. 383, 391, 392, 130 S.W. 836. (4) Defendant had the legal right to determine the contract, because the plaintiff, by his acts and conduct, had, in effect, breached that contract. 17 C.J. Sec., Sec. 385, p. 877, et seq., Sec. 399, p. 890; Creamery Package Mfg. Co. v. Sharples Co., 98 Mo. App. 207, 71 S.W. 1068; People's Finance Corporation v. Buckner (Mo.), 126 S.W. (2d) 301, 302, et seq.; Goltra v. Weeks (Mo.), 271 U.S. 536, 70 L. Ed. 1074. (5) The well-known maxim that "Equity follows the law" is strikingly applicable here. State ex rel. Ellsworth v. Fidelity & Deposit Co., 235 Mo. App. 850, 863, 147 S.W. (2d) 131; Aetna Insurance Co. v. O'Malley, 342 Mo. 800, 816, 118 S.W. (2d) 3, 10; Bost v. McFarland, 229 Mo. App. 776, 780, 81 S.W. (2d) 350, 353; Costello v. Ashford, 227 Mo. App. 863, 869, 58 S.W. (2d) 755; Growney v. O'Donnell, 272 Mo. 167, 180, 198 S.W. 863. (6) This being an equity case, this court will, of course, hear and determine the same de novo; and this court has jurisdiction to render its own finding, judgment and decree herein. Pfau v. Breitenburger, 17 Mo. App. 19, 22; Carroll v. Campbell, 25 Mo. App. 630; Finkelnburg & Williams' Missouri Appellate Practice, page 122; Ringo v. Richardson, 53 Mo. 385, 396; Darrier v. Darrier, 58 Mo. 222, 234. (7) The finding, judgment and decree are excessive, and are so grossly excessive, as to call for and warrant judicial interference by this court.

Louis A. Laughlin and Samuel Feller for respondent.

(1) Every fact necessary for plaintiff to establish in order to recover was admitted by defendant. The trial court found the issues in favor of the plaintiff and against defendant, and this court will defer largely to the chancellor's findings on conflicting testimony. Warwick v. Warwick, 145 S.W. 144, 146; Foster v. Williams, 128 S.W. 797, 799; Douforth v. Foster, 139 S.W. 520, 521. (2) Plaintiff is entitled to recover for commissions on sales made to the Whitaker Battery Supply Company because he was the procuring cause in securing said company as a customer for defendant. 3 C.J.S., p. 86; Morton v. Case Threshing Machine Co., 99 Mo. App. 630, 74 S.W. 434; Tyler v. Parr, 52 Mo. 249; Timberman v. Craddock, 70 Mo. 638; Gelatt v. Ridge, 117 Mo. 560, 23 S.W. 882; Lipscomb & Russ v. Cole, 81 Mo. App. 53; Laster v. R. & V. Motor Co., 219 Mo. App. 211, 269 S.W. 665, 668; Vining v. Lippincott, 182 S.W. 758, 759; Buhrmester v. Independent P. & H. Supply Co., 151 S.W. (2d) 509. (3) Plaintiff is entitled to commissions on repeat orders filed subsequent to August 31, 1939, the date of the cancellation of the contract for the reason that the cancellation of the contract did not release defendant from liability for services theretofore performed by plaintiff under the contract. 17 C.J.S. 404; Hooper et al. v. Laytham & Sons, 199 Atl. 51, 123 N.J. 596; Mile v. Calif. Growers, etc., 114 Pac. (2d) 651); Abendfost v. Hertel, 67 Ill. App. 501; Wilson v. Harper, 2 Ch. 370; Fuchs v. Standard Thermometer Co., 178 Mich. 37, 144 N.W. 484; In re Wright, 157 Fed. 544, 18 L.R.A. (N.S.) 193. (4) Defendant is estopped from making any defense to the Whitaker Battery Supply Company account other than that the sales were made in territory not covered by the contract, and that defense is not pleaded. Prudential Insurance Co. v. German Mut. Fire Ins. Agency, 105 S.W. (2d) 1001, 1006, 231 Mo. App. 699; Ornellas v. Moynihan (Mo.), 16 S.W. (2d) 1007; 21 C.J. 1222; Union Central Life Ins. Co. v. Drake, 214 Fed. 536, 547, 131 C.C.A. 82; Braniff v. Baier, 101 Kan. 117, 165 Pac. 816; Ohio, etc., R. Co. v. McCarthy, 96 U.S. 258; 19 Am. Jur. 714. (5) The defense of cancellation or abandonment of the contract cannot be made by defendant because not pleaded. Columbia F. & G. Co. v. Ins. Co., 196 S.W. 393; Riggins v. Railroad, 73 Mo. 607; Rivers v. Blom, 163 Mo. 448, 63 S.W. 812; Darrett v. Donnelly, 38 Mo. 492; Reynolds v. Reynolds, 45 Mo. App. 627; England v. Houser, 178 Mo. App. 73, 163 S.W. 891; Sutter v. Raeder, 149 Mo. 297, 50 S.W. 813. (6) The finding of the court that plaintiff's average commission under the contract was two per cent of the selling price was fully sustained under the evidence. The defendant had it within its power to refute said evidence if it were not true, which it failed to do. 22 C.J. 111, sec. 53; Schneider v. Manley, 145 S.W. 823, 824.

BOYER, C.

This case was instituted, heard by the court, and treated by the parties as a proceeding in equity to require an accounting of sales made by defendant to customers alleged to have been procured by the plaintiff, and to recover judgment for the amount of commissions found to be due the plaintiff on said sales pursuant to the terms and conditions of a written contract attached to the petition.

The petition alleged the corporate capacity of defendant, and for cause of action stated that plaintiff and defendant entered into a contract of employment in writing on or about the 4th day of July, 1935, whereby the defendant employed the plaintiff to solicit business for it in any territory outside of Kansas City; that the contract provided that any new business secured by defendant as a result of plaintiff's efforts that plaintiff should be paid a commission as compensation for his services the difference between the net price quoted by defendant to plaintiff and the net amount or price received by defendant as the result of such transaction, and that such commissions should be continued to be paid on repeat orders by the defendant to plaintiff so long as plaintiff should continue to use his efforts to retain such business; that as a result of plaintiff's efforts he secured new business for the defendant from eleven named companies; that plaintiff has no means of knowing accurately what the repeat orders from said parties have amounted to and defendant has failed and refused to advise plaintiff as to such repeat orders and has failed and refused to pay plaintiff the commissions to which he is entitled under the contract; and further alleges that there is due and owing plaintiff more than $600, but he is unable to state the exact amount without an accounting being made by the defendant as to such repeat orders; and that plaintiff has been willing and has offered to and has used his best efforts to retain such business for defendant. A complete accounting was demanded as to all business transacted with the parties named by plaintiff and judgment for the amount of commissions found to be due under the terms of the contract.

The answer admits that defendant is a corporation and that R.E. Normandie, vice-president of defendant, and plaintiff entered into a contract on July 9, 1935. Further answering the defendant alleges that plaintiff has been paid all sums due and owing him under said contract except the sum of $4.20, which has been duly tendered by defendant and refused by the plaintiff; that prior to and not later than August 8, 1939, plaintiff ceased, failed and refused to use his best efforts to retain such business as he had obtained under said contracts for defendant, and that he was not thereafter entitled to any commissions under said contract; and the answer denies that plaintiff has complied with and performed the terms and conditions of said contract by him to be complied with and performed; and denies generally other allegations of the petition. No reply is shown of record.

The judgment of the court found the issues in favor of plaintiff, and that plaintiff was entitled to an average commission of two per cent on the selling price of material sold by defendant, and awarded plaintiff a judgment in the total sum of $3093.88, which was the combined sum of amounts found to be due plaintiff on sales to the Whitaker Battery Supply Company in the amount of $2794.17, and the sum of $299.71,...