Helfer v. Corona Products, 12176.

• Decision Date: 14 April 1942
• Docket Number: No. 12176.,12176.
• Citation: 127 F.2d 612
• Parties: HELFER v. CORONA PRODUCTS, Inc.
• Court: U.S. Court of Appeals — Eighth Circuit

127 F.2d 612 (1942)

HELFER v. CORONA PRODUCTS, Inc.

No. 12176.

Circuit Court of Appeals, Eighth Circuit.

April 14, 1942.

COPYRIGHT MATERIAL OMITTED

Harold C. Hanke, of St. Louis, Mo., for appellant.

Thomas B. Pryor, of Fort Smith, Ark. (Vol T. Lindsey, of Bentonville, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

WOODROUGH, Circuit Judge.

On November 22, 1935, the Corona Products, Inc., an Arkansas corporation, and J. J. Helfer of St. Louis, Missouri, entered into a written contract for the employment of Mr. Helfer as the corporation's sales agent. Disputes arose between them, and on September 26, 1938, Mr. Helfer brought this suit in equity against the corporation for an accounting and recovery of commissions and to recover expenses and damages for which he claimed the corporation was obligated by reason of its alleged breaches of the contract. The issues were joined upon a third amended petition of the plaintiff, defendant's answer thereto and plaintiff's reply. The court referred the whole case to a master to take the testimony and to report findings of fact and conclusions of law. The master died after taking the testimony and before making his report, and a second master was appointed as "master in succession". He considered the pleadings, the transcribed testimony and exhibits, and made report to the district court some nineteen months after his appointment. The district court, on consideration of the report, the plaintiff's exceptions to it, the transcribed testimony and the exhibits, entered decree some four months later dismissing the case at plaintiff's cost. Plaintiff appeals from the decree.

At the outset we take occasion to point out that although the plaintiff's petition prayed for the appointment of a master in the case, there was no showing that any exceptional condition required such appointment for the whole case within the intendment of Rule 53, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. "A reference to a master shall be the exception and not the rule", and where, as in this case, nothing more was involved in the suit than to ascertain and adjudicate how much, if anything, this small defendant company owed its sales agent in respect to the contract it had with him, and where all the testimony was taken in less than four days of hearings, the duty of trying and deciding the case and of filing the findings of fact and conclusions of law supporting the decree was upon the court. The report, which was dilatorily filed by the "master in succession", was not made in conformity with applicable Rule 53. Although specific findings of fact relative to the numerous fact issues were submitted to the master on the part of the plaintiff, the master made no rulings respecting such requests. He did not define the issues presented by the pleadings and evidence, or state his findings of fact upon such issues or his conclusions of law, but contented himself with general narrative expressions of opinion, conclusions and a recommendation that the case be dismissed. On the hearing of the exceptions taken to the master's report, the district court did not hear oral arguments of counsel, but in connection with its decree dismissing the case the court filed its opinion in writing in which contentions of the parties are discussed and reasons for the decision are set forth.

It results from the procedure in the trial court that the record on appeal does not present definite findings of fact or declarations of law in support of the decree brought up for our review, as contemplated by the Rules of Civil Procedure, and in ordinary course we should be required to reverse the decree and remand the case with direction to the district court to supply such findings and conclusions. But the plaintiff in the case has shown that he is without means, the lawsuit has pended three and a half years and is now being prosecuted in forma pauperis, and we are urged to treat the report of the master and the opinion of the trial court as in compliance with the rules to the extent that findings of fact and conclusions of law may be inferred from them, and to review the decree. Accordingly, we review the decree appealed from, but we are bound by Rule 53, Federal Rules of Civil Procedure and we may not set aside findings of fact of the trial court disclosed by its opinion unless clearly erroneous, and such findings of the master as are disclosed by his report to the extent that the court has adopted them may not be set aside unless clearly erroneous.

Statement.

It appears that at the time the contract involved in the suit was entered into the defendant owned and operated a silica mine and a plant for processing and shipping the product at Rogers, Arkansas, and the plaintiff had had experience in selling concrete and silica. By the terms of the contract the defendant employed the plaintiff to devote himself exclusively to the work of selling, promoting sales of and making new markets for defendant's products designated generally as Tripoli Silica. Plaintiff agreed to maintain an office at his own expense in Washington, D. C., or some other large city in the middle west, and to defray all expenses in connection with his work, including among other things, the expense of traveling, stenographer, office, rent and maintenance, postage and all telegrams, radios and telephone calls, excepting such as might be specifically assumed by defendant, and excepting the telegrams and telephone calls to Rogers which were approved by defendant's manager. Paragraphs 4 and 5 of the contract read:

"(4) Helfer is informed that corporation is now selling its product for use in the drilling of and completing oil and gas wells, and it is stipulated that he is not to sell this trade except by special agreement with H. G. Barnes and B. O. Mayfield of Beaumont and Houston, Texas, respectively.

"(5) The product of corporation is now being used as an admix, as a constituent in the manufacture of paints, and as fillers in the making of various products, in addition to its use in the oil field business. It is mutually agreed and understood that with the exception set out in paragraph number (4) above, and business received from our present dealers, all accepted orders, whether the orders be received from customers by direct address to corporation's home office or through Helfer, are to be regarded as sales made by Helfer within the purview of this contract."

It was provided that on the sales of "admix" plaintiff was to be paid as his commission the difference between the sales price per ton paid defendant and $8 per ton when such sales price was not more than $12 per ton. When such sales price was more than $12 per ton, plaintiff's compensation was one-third of the sales price. On sales of Tripoli Silica used for paint he was to be paid the difference between $12 and $18 per ton, but when the sales price exceeded $18 per ton, he was to receive one-third of the sales price. All sales prices referred to were F. O. B. on cars at defendant's mill at Rogers, Arkansas.

It was also provided that special arrangement as to price terms and compensation might be made with reference to sales where magnitude of the sale or other characteristic appeared to make special arrangement advisable, without operating to change the provisions of the contract.

There was provision that in the event the defendant should sell out or discontinue operation of its plant, remuneration to plaintiff for cancellation of the contract might be mutually agreed upon. "In the event such remuneration cannot be mutually agreed upon corporation reserves the right to arbitrarily cancel this contract by paying Helfer $5,000 if such cancellation is prior to the expiration of one year after date of this contract, and thereafter an addition of $1.00 One Dollar per ton for all ground Corona Products Tripoli Silica and ($.25) Twenty five cents per ton on all crude (not ground) Corona Products Tripoli Silica, sold by Helfer under this contract prior to such cancellation. Said payment to be made within ninety days after cancellation of this contract at the general office of the corporation."

It was also provided that defendant would execute all orders which would yield $8 per ton to it if approved and that orders would be approved "whenever warranted in good business practice." Paragraph 2(b) stated that plaintiff's commissions should be paid on the 5th of the month following payment by the customer, and if not paid by then they should be accounted for by defendant and paid before the expiration of the fifth day after the end of the fiscal (which was the calendar) year.

Paragraph 6 stated that it was anticipated by both parties new uses for defendant's products would be developed and it was provided that as to any such uses developed by plaintiff a basis for compensation for plaintiff in respect thereto should be arranged and reduced to writing between the parties.

Paragraph 7 read: "It is mutually agreed that the term of this contract shall be five years reckoned from the latest date shown hereon as date of execution, provided Helfer shall during said term have furnished bona fide orders accepted by the corporation amounting to not less than (1500) One Thousand Five Hundred tons the first year of this contract and (2000) Two Thousand tons each, the second, third, fourth, and fifth year, it being understood any such order above mentioned cancelled through no fault of the corporation shall not be included in above totals. Any additional tonnage in any one year above the minimum above set out, may be considered a part of the following year's requirement, provided new orders for any one year totals as much as One Thousand tons."

The Pleadings.

Plaintiff's third amended petition, on which the case was tried, made the contract a part thereof by reference and alleged that upon the execution of the contract plaintiff...