Eber v. Bauer

• Decision Date: 02 December 1930
• Docket Number: No. 180.,180.
• Parties: EBER et al. v. BAUER et al.
• Court: Michigan Supreme Court

252 Mich. 571

233 N.W. 419

EBER et al.

v.BAUER et al.

No. 180.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, Berrien County; Charles E. White, Judge.

Action by Kenneth D. Eber and another, copartners doing business as the Eber & Eber Auto Sales, for the use and benefit of the Century Indemnity Company, against Ray Bauer and another. Judgment for plaintiffs, and defendant the Reliable Transit Company brings error.

Affirmed.

The written contract referred to in the opinion is as follows:

‘Witnesseth, that the said party of the second part has agreed to enter the service as an operator of his own truck or having an equity therein of the party of the first part, and promises faithfully, honestly, and diligently to give and devote to the party of the first part, his time, labor, and truck as aforesaid, whenever he is called upon to do so by the party of the first part.

‘In consideration whereof the said party of the first part agrees to pay to the said party of the second part, seventy-five per cent (75%) of the gross sum of earnings earned by the party of the second part, less the total amount of claims and allowances that have been presented by a third party and paid or to be paid by the party of the first part. It is further agreed that the party of the second part assumes and pays all costs and operating expenses to maintain his own truck. That the party of the second part have public liability, property damage, and cargo insurance on his own truck while in service of the party of the first part, and premium to be paid by the party of the second part. Policy or policies during the time truck is in service are to be in possession of the party of the first part and are to be kept in a safety deposit vault known to be of safe keeping by both parties.

‘That the party of the first part will retain the sum of three hundred dollars ($300.00) as deposit, bearing interest at the rate of three per cent (3%) per annum, against theft and claims, that might have incurred by the party of the second part, at all times, and for twenty days after the resignation of the party of the second part from the service of the party of the first part.

‘That the party of the second part will give five days' notice in advance of his resignation from the service of the party of the first part.

‘That all collections of money due from services rendered are collectible only by the party of the first part, with the exception that when bill of lading is specifically marked collect on delivery, in that event the party of the second part must remit to the party of the first part all collections made, promptly.

‘Settlements of accounts are to be made to the party of the second part weekly, or in no event later than thirty days from date of last settlement, on condition of the aforesaid terms.

‘And it is further agreed that the party of the first part reserve the right to request resignation of the party of the second part without advance notice.’

Argued before WIEST, C. J., and BUTZEL, CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ. Rolland E. Barr, of St. Joseph, for appellant.

Arthur E. Leckner, of St. Joseph (Willard J. Banyon, of St. Joseph, of counsel), for appellees.

SHARPE, J.

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