Dallas Electric Supply Co. v. Branum Co., 13490.

• Decision Date: 26 May 1944
• Docket Number: No. 13490.,13490.
• Citation: 185 S.W.2d 423
• Parties: DALLAS ELECTRIC SUPPLY CO., Inc., v. BRANUM CO. et al.
• Court: Texas Court of Appeals

Page 423

185 S.W.2d 423

DALLAS ELECTRIC SUPPLY CO., Inc., v. BRANUM CO. et al.

No. 13490.

Court of Civil Appeals of Texas. Dallas.

May 26, 1944.

Rehearing Denied June 23, 1944.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Action by the Dallas Electric Supply Company, Inc., against the Branum Company and others for commissions and payment for services as a manufacturer's distributor. From a judgment for plaintiff, plaintiff appeals and defendant cross-assigns error. On rehearing.

Affirmed in part and reversed in part.

Judgment affirmed 185 S.W.2d 427.

W. S. Campbell and O. D. Montgomery, both of Dallas, for appellant.

Storey, Sanders, Sherrill & Armstrong, of Dallas, for appellees.

LOONEY, Justice.

The parties will be referred to as in the court below; plaintiff is Dallas Electric Supply Company, Inc., defendant is Mose Branum, doing business as The Branum Company, referred to in the contract hereinafter mentioned as "the Manufacturer." On original submission we reversed the trial court in two respects, that is, held that it erred in refusing to render judgment in favor of plaintiff against the defendant for $1,000 damages as found by the jury, hence rendered judgment in plaintiff's favor for that amount with interest, etc.; also held that the trial court erred in rendering judgment in favor of plaintiff against the defendant for $858.11 damages for breach of the alleged exclusive feature of the contract involved, and set the same aside. Both parties moved for rehearing. After duly considering these motions we have reached the conclusion that error was committed in reversing the trial court and in rendering judgment in plaintiff's favor for $1,000 damages, but are unconvinced that error was committed in setting aside the judgment in favor of plaintiff for $858.11. The original opinion heretofore filed will be withdrawn and this opinion filed in lieu.

On January 1, 1940, the defendant executed a consignment contract whereby he appointed plaintiff agent and distributor, to sell on a commission basis Tung-Sol radio tubes within a described territory. The contract was terminable at the will of either upon written notice to the other, and in fact was terminated by the defendant May 1, 1942. At that time plaintiff owed the defendant $2,182.34, and previously had placed in the hands of forty-one subagents, as dealers, appointed under terms of the contract, radio tubes remaining unsold, invoicing $11,135.55, for the distribution of which plaintiff had incurred an expense of $1,395.77. It also appears that during the life of the contract, defendant sold to dealers within the territory covered by the contract, Tung-Sol radio tubes amounting to $5,363.25 upon which, under the terms of the contract, plaintiff's commission, if entitled to recover, would have been $858.11.

In this status, plaintiff instituted the present suit, tendered and paid into the registry of the court the sum of $2,182.34, the amount admittedly due the defendant, subject, however, to plaintiff's alleged claims or causes of action; that is, plaintiff sought to recover damages in the sum of $858.11, loss of profits on sales made by the defendant to dealers within the named territory, on the theory that the contract was exclusive; also sought to recover commissions amounting to $1,781.69 on the forty-one subagency accounts, alleging substantial performance of the contract in respect to these accounts in soliciting and making distribution of radio tubes prior to the termination of the contract; or, in the alternative, sought to recover the amount stated as the reasonable value of the services rendered and expenses incurred, on a quantum meruit basis; praying judgments for said amounts, that the money deposited in court be appropriated to the satisfaction of same and that plaintiff have execution for any balance remaining unpaid. The trial court sustained exceptions to that portion of plaintiff's pleading, seeking recovery of $1,781.69 commissions, but permitted the plea of quantum meruit to stand. The cause was submitted to a jury who found that plaintiff was entitled to the exclusive right to sell and consign radio tubes in the described territory, and further, that $1,000 was the reasonable value of plaintiff's services in appointing subagents or dealers, and in distributing among them the radio tubes.

Plaintiff moved for judgment non obstante, praying that the finding of $1,000 as the reasonable value of its services be disregarded and that judgment be rendered in its favor for $1,781.69 as its commissions, or, in the alternative, prayed judgment for $1,000 as found by the jury; also asked judgment for $858.11 damages, the amount of commissions claimed on sales of tubes made by the defendant to dealers within the described territory, in violation of the exclusive feature of the contract.

The court overruled plaintiff's motion for judgment non obstante for the commissions claimed, also denied judgment for $1,000 as found by the jury, but rendered judgment in its favor for $858.11, damages for the loss of profits for the breach of the alleged exclusive feature of the contract, plus $47.48 interest—total $905.58—and directed the clerk to pay that amount to plaintiff out of the fund on deposit, and the remainder to the defendant. Both parties moved for a new trial, each was overruled, each excepted and gave notice of appeal, but plaintiff alone perfected appeal and has assigned errors; the defendant urges counterpoints, also crosspoints of error.

The points of error urged by plaintiff for reversal, construed together, mean that in view of the findings of the jury and undisputed facts, the court erred in not rendering judgment in its favor for $1,000, the amount found by the jury as the reasonable value of its services in soliciting and appointing subagents and in making distribution of the radio tubes remaining unsold in their hands at the time the contract was terminated. As heretofore shown, at an expense of $1,395.77, plaintiff had solicited and appointed forty-one subagents, dealers in the allotted territory, and had distributed among them radio tubes of the invoice value of $11,135.55, unsold when the contract was terminated May 1, 1942.

To recover on a quantum meruit, the facts justifying recovery must be outside the terms of the agreement. Where the contract speaks, recovery cannot be had on a quantum meruit; the right to recover must be independent of the contract and outside its provisions. The contract fixes rights of the parties, and if performance is wrongfully prevented, the aggrieved party may recover either on the contract or on a quantum meruit, at his election; but where suit is based on, and the rights of the parties are fully stated in, an express contract of employment, alleging covenants of performance on plaintiff's part, in absence of breach or wrongful prevention of performance by defendant, recovery for incurred expenses in the performance thereof cannot be sustained on a quantum meruit count.

In the case at bar, the contract between the parties, pertinent here, expressly provides: Sec. 1. That plaintiff, as agent, agreed to...