Eston v. Robert Brown, Ltd.

• Decision Date: 21 December 1938
• Docket Number: No. 53.,53.
• Citation: 287 Mich. 44,282 N.W. 895
• Parties: ESTON v. ROBERT BROWN, Limited.
• Court: Michigan Supreme Court

287 Mich. 44

282 N.W. 895

ESTON

v.ROBERT BROWN, Limited.

No. 53.

Supreme Court of Michigan.

Dec. 21, 1938.

Action by Louis M. Eston against Robert Brown, Limited, a foreign corporation, to recover commissions on sale of liquor by defendant to the Michigan Liquor Control Commission during a period covered by an alleged contract which plaintiff claimed to have had with defendant. From a judgment for plaintiff, defendant appeals.

Judgment vacated and case remanded.Appeal from Circuit Court, Wayne County; Louis C. Cramton, judge.

Argued before the Entire Bench, except BUTZEL, J.

Wiley, Streeter & Ford, of Detroit, for appellant.

Harold Goodman, of Detroit, for appellee.

NORTH, Justice.

This suit is for commissions claimed by plaintiff on the sale of liquor by defendant to the Michigan Liquor Control Commission during a period covered by a contract which plaintiff claims he had with defendant as its Michigan representative for a period of two years ending March 6, 1937. Plaintiff claims that in March, 1936, defendant wrongfully terminated the agency, and this suit is for the commissions on liquor sales during the unexpired term of the alleged contract. It also involves a few other minor items. The sales for the period in controversy were made through Seagram Distillers Corporation, acting as an agency for defendant in the capacity formerly occupied by plaintiff. Defendant answered and made a motion to dismiss. Plaintiff filed a motion for summary judgment with affidavits in support thereof. Defendant filed affidavits of merits. These two motions were heard simultaneously. On an adjourned day of the hearing the circuit judge, a jury having been waived, disposed of the case on its merits over defendant's objection. He denied defendant's motion to dismiss and rendered a judgment for plaintiff in the amount of $5,125.30. Defendant has appealed.

Appellant asks reversal for the reason that on this hearing of plaintiff's motion for summary judgment it developed there was a controversy as to at least one material issue of fact, i. e., the amount of damages. Appellee claimed that the attorneys had entered into a written stipulation which controlled the amount of damages to be recovered by plaintiff in event the alleged agency was found; and therefore there could be no controverted issue of fact on the damage phase of the case. The stipulation upon which appellee relies reads as follows: ‘It is hereby stipulated and agreed, by and between the parties to the above entitled cause, by their respective attorneys, that if a contract exists as alleged in the plaintiff's declaration that plaintiff is entitled to recover damages for the breach of said contract, and that, subject to check for accuracy, the number of cases specified in the affidavit of the secretary of the Michigan Liquor Commission attached to the motion for summary judgment will be accepted by defendant as correct.’

Early in the hearing before the circuit judge it was apparent that the attorneys for the respective litigants were not in accord as to the purport of the above stipulation. In brief, appellant's counsel pointed out that the stipulation provided only that in event the alleged agency was found to exist recovery of damages for its breach would be based upon the number of cases of liquor shown to have been sold to the Michigan Liquor Control Commission by the affidavit of the secretary of that commission. While it was an undisputed fact that plaintiff's rate of commission was seven shillings (approximately $1.71) per case, we are unable to find in this record that it is stipulated or anywhere conceded to be the fact that plaintiff's damages, in event of recovery, should be computed at the rate of seven shillings per case. Instead it appears from the record that defendant claimed plaintiff would have been subjected to expense in making the sales and therefore his actual loss or damage would be the net profit or commission per case. What this amount would be nowhere appears in this record. There was no equivocation about the position of appellant's counsel, who at the outset of the hearing stated to the court and opposing counsel:

‘* * * I don't want to be misunderstood now, as agreeing, as a matter of law, that the...