Cole Motor Car Co. v. Tebault
Citation | 72 So. 21,196 Ala. 382 |
Decision Date | 01 June 1916 |
Docket Number | 3 Div. 236 |
Parties | COLE MOTOR CAR CO. v. TEBAULT. |
Court | Supreme Court of Alabama |
Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.
Assumpsit by P.D. Tebault against the Coal Motor Car Company. Judgment for plaintiff, and defendant appeals. Affirmed.
The suit was to recover commissions alleged to be due plaintiff on sales of automobiles made by plaintiff as agent of defendant. The contract between the parties was oral, made March 1, 1914, and simply provided for payment of plaintiff by defendant of 5 per cent. on the price of all Maxwell cars sold by plaintiff; nothing being said as to how or on what terms the cars were to be sold. Plaintiff testified, however that under the contract he was to receive his commission as soon as the car was delivered to the customer. He further testified that he could not sell the car for anything less than the list price without first submitting the proposition to defendant, and that, when a secondhand car was received in part payment for the car sold, he had no interest in the secondhand car, and the price at which it was sold did not affect his commission; and that it was the general custom for automobile salesmen selling on a fixed commission to receive the commission whether the sale was for cash or on credit, or whether property was taken in exchange or not. The defendant testified that the contract was substantially as stated by plaintiff, and that in figuring the amount of commission due plaintiff he based the commission upon the actual amount received for the car, and not upon the list price, and that where a secondhand car was received in part payment, or other property was received, he could not ascertain the commission until the secondhand property was sold, and a definite amount realized from it. Defendant's witnesses Black and McIntyre testified that in March, 1914, there was a definite general custom prevailing in the city of Montgomery concerning contracts between automobile dealers and salesmen who were employed by them, as to the commission to be paid for the sale where an old or secondhand car was taken in part payment of an automobile sold by such salesman; that this general custom was that the commission was to be based on what was received for the new car, including the price which was received for the secondhand car when sold, and the commission was not to be allowed until the secondhand property was sold; that the commission was figured on what was realized on the new car.
The complaint contained two common counts and two counts on the contract, the fourth count specifying each automobile sold the price, the purchaser, and the commission agreed on. In its oral charge to the jury the court instructed them that as there was nothing to show how long the several customs testified to had existed in the city of Montgomery, and hence no inference that it entered into the contract, the question for their determination was: What was the contract between the parties? The defendant requested in writing an instruction that plaintiff was not entitled to recover under the fourth count, which instruction was refused.
Blakey & Strassburger and William F. Thetford, all of Montgomery, for appellant.
Warren S. Reese, of Montgomery, for appellee.
The only questions presented by the assignments of error are upon defendant's exception to a portion of the oral charge to the jury, and the refusal of the affirmative charge for defendant as to the fourth count of the complaint.
A prevailing usage of trade, however general, cannot be presumed to have been in the contemplation of contracting pa...
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... ... v. Ryan, 110 Ala. 336, 17 So ... 733; Thomas v. State, 150 Ala. 31, 43, 43 So. 371; ... Cole Motor Car Co. v. Tebault, 196 Ala. 382, 72 So ... 21; Brilliant Coal Co. v. Barton, 205 Ala. 89, ... ...
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