Gregory v. Cohen

• Decision Date: 30 September 1897
• Citation: 27 S.E. 920,50 S.C. 502
• Parties: GREGORY v. COHEN et al.
• Court: South Carolina Supreme Court

27 S.E. 920

50 S.C. 502

GREGORY v. COHEN et al.

Supreme Court of South Carolina

September 30, 1897

Appeal from common pleas circuit court of Chesterfield county; James Aldrich, Judge.

Action at law by T. S. Gregory against E. Cohen & Sons. From a judgment dismissing the complaint, and in favor of defendants on their counterclaim, plaintiff appeals. Affirmed.

Following are the pleadings, referee's report, decree, and exceptions thereto:

"The complaint is as follows, omitting the caption: 'The complaint of the above plaintiff shows to this court First. For a first cause of action: (1) That the defendants above named were at the times hereinafter referred to, and still are, partners in trade under the name and style of E Cohen & Sons. (2) That on or about July 25, 1895, the plaintiff entered into a contract with said defendants whereby he agreed to travel as a salesman for them in South Carolina, and solicit and take orders for their goods, and forward the same to defendants, who were to fill all orders from solvent parties, and were to pay plaintiff for his services four per cent. Commissions on all orders which were good. Said contract to run for one year from its date. (3) That plaintiff has traveled for said house, and taken and forwarded twenty-five hundred and thirty dollars of orders from parties of good commercial standing, solvent and with good credit, and said orders, have been received by said firm, and plaintiff's commission thereon is due, amounting to one hundred and one 25/100 dollars, and he has demanded the same, and defendants have refused to pay more than fifty 61/100 dollars, and there is a balance on the same of fifty 56/100 dollars ($50.56) to plaintiff. Second. For a second cause of action: (1) That the defendants herein were at the time herein referred to, and still are, partners in trade under the name and style of E Cohen & Sons. (2) That on or about July 25, 1895, plaintiff, who expected to make his living as a traveling salesman, entered into a contract with defendants to travel for one year in the state of South Carolina, and solicit and take orders for defendants, who are engaged in the mercantile business, and defendants were to fill all orders from firms or persons of good commercial standing, and were to pay plaintiff four per cent. commissions on the amount of all solvent orders. (3) That plaintiff, during the month of August, 1895, began to travel under said contract, and to solicit and take orders for defendants' goods, and forward them, and defendants, in violation of their contract, refused to fill many solvent orders from firms or parties of good commercial standing, and filled only part of other orders, and finally, on October 17, 1895, ordered plaintiff to stop taking orders altogether, although it was in the best part of the season to sell goods. (4) That by the foregoing acts the defendants have injured the standing, as a salesman, of the plaintiff, giving the impression that he is not responsible and his orders are not respected, and have in jured him, in causing him to spend a large amount of money in building up a trade which is now useless, and have thrown him out of employment for the season; and by doing said things, by their willful breach of their contract, they have damaged the plaintiff in the sum of two hundred and fifty dollars. Wherefore he demands judgment: (1) On the first cause of action for fifty 56/100 dollars; (2) on the second cause of action for two hundred and fifty dollars damage; (3) and for costs.'

"The defendants answered, and the following is their answer, omitting the caption: "The defendants, answering the above complaint, say: (1) For a first defense they deny each and every allegation in said complaint contained, except as hereinafter specifically admitted. They admit that they are partners, as alleged; that they did enter into an agreement with the plaintiff on the 4th day of August, 1895, by which it was agreed that he should travel for the defendants in the state of South Carolina, at his own expense, and sell goods for them; that the defendants should pay to him a commission of four per cent. on all orders taken by him which were approved and accepted by the defendants; and they allege that they have fully performed their part of said contract, and have paid the plaintiff in full for all such orders, and owe him nothing on any account whatever. (2) For a second defense, and as a counterclaim, they allege that the said plaintiff was found by the defendants to be inefficient and unsatisfactory, and, they having for good cause discontinued said arrangements with him, and refused to employ him longer, they demanded of him a trunk and one lot of samples, the property of the defendants, and to which they were entitled to the immediate possession, and the plaintiff unlawfully refused, and still refuses, to deliver same to them, to their damage thirty dollars. Wherefore the defendants demand judgment: (1) On the first defense, that the complaint be dismissed, with costs. (2) On the second defense and on the counterclaim, that they have judgment against the plaintiff for the sum of thirty dollars.'

"On these pleadings, by consent of parties, a jury trial was waived, and all issues, of law and fact were referred to G. J. Redfearn, as special referee. After taking the testimony, the referee rendered his report, which is as follows, omitting the caption:

"'This was an action at law by plaintiff for a balance of commissions due him, as he alleged, from defendants, and for damages for violation of contract. It was referred to me, by consent of all parties, by his honor, R. C. Watts, presiding judge at the February term of this court. After considering fully the evidence, I am satisfied that the contract between plaintiff and defendants was to run for one year. The written instructions given to plaintiff, such as they were, bore date August 5, 1895, and therefore the contract would end August 4, 1896. Plaintiff also stated that all solvent orders were to be filled, and he was to get four per cent. commission on the same. The defendants claimed the rights to determine the question of what orders they would or would not fill, and that it was on such as they filled that plaintiff was to get commissions. This would subject plaintiff to the danger of having all his orders turned down if goods were advancing, and working for nothing, at the mere caprice of the defendants, and is not reasonable, when we remember that plaintiff sold out his entire business, and left everything, to take this work up. It is not reasonable that a sensible man would make such a one-sided arrangements, and, after carefully weighing the question, I have come to the conclusion the contract was, as alleged by the plaintiff, that his commissions were to be paid on orders that were good; in other words, from people who stood well in the commercial world, had good credit, and men worthy of credit. Now there is one class of orders which there can be no dispute about as to commissions, and that is the orders from parties whose other orders were filled, or part of whose orders, sent at the same time, were filled. By filling their orders, or part of them, defendants admitted that they came in the terms of plaintiff's agreement, and were solvent. Plaintiff kept his duplicates of orders, and the original orders were put in evidence. Defendants testify in a sweeping way, that they were all filled, but their letters show that they left out parts of certain orders. This raises a conflict with themselves as to the filling of the orders, and plaintiff gives us in his evidence what they left out. I find that they left out of Baum Bros.' orders, goods amounting to $199.40; of D. J. McCauly's order, goods amounting to $85.39; of W. H. Gregory & Co.'s order, goods amounting to $17.14; of W. C. Coker's order, October 16th, goods amounting to $58.94; of W. C. Coker's order, October 9th, goods amounting to $32.79; of C. M. Lee's order, goods amounting to $178.45; of L. L. Caldwell's order, goods amounting to $101.33; of H. W. Finlayson's order, August 8th, goods amounting to $35.08; of C. Morgan's order, goods amounting to $170.48; of W. S. Cook's order, goods amounting to $21.81,--total omissions in orders, $900.82. Now, as to orders not filled at all: Plaintiff claimed that H. W. Finlayson's order couldn't be turned down, for the reason that they had filled a former order of Mr. Finlayson's only a short time, before, and could not now be heard to say he was not solvent. Then there are the orders of A. S. Douglass, W. N. Ratliff, and Miss. Stakely. The evidence satisfies me that their commercial standing is good, and that plaintiff derived information of those facts from the most reliable sources accessible. It is urged that his knowledge was derived from hearsay. That is peculiarly characteristic of all such knowledge, and, if defendants had any knowledge regarding these parties, it was derived in the same way. But plaintiff also went into their places of business, saw their stock, saw their trade being carried on, and, in one instance,

saw orders given to a wholesale man on good terms. In addition to that, W. N. Ratliff offered to pay cash. This is proved conclusively. And here I wish to notice the statement of Eleazer Cohen in answer to question 38. He says: "A number of the parties from whom he obtained orders, we found, on making the usual investigations, were very undesirable as credit risks, but to those parties we in every case tendered the goods ordered for cash." Mr. W. N. Ratliff, who happened to do business in the town where this reference was held, was called in, and he and his salesman contradict this statement as to his order. It is abundantly proven that he was ready and anxious to get...