Huo Chin Yin v. Amino Products Co.

• Decision Date: 27 January 1943
• Docket Number: 29130.
• Citation: 46 N.E.2d 610,141 Ohio St. 21
• Parties: HUO CHIN YIN v. AMINO PRODUCTS CO.
• Court: Ohio Supreme Court

46 N.E.2d 610

141 Ohio St. 21

HUO CHIN YIN v. AMINO PRODUCTS CO.

No. 29130.

Supreme Court of Ohio

January 27, 1943

Syllabus by the Court.

1. The acceptance of less than the amount presently or past due upon a liquidated and undisputed indebtedness in full payment thereof is not an accord and satisfaction.

2. When a plaintiff brings an action for a definite amount of indebtedness which he claims is liquidated by agreement, and an issue is made thereon as to the amount thereof and the admitted acceptance of a less amount in full payment is pleaded by the defendant as an accord and satisfaction, a finding by the jury that the demand of plaintiff is unliquidated is sufficient to sustain the defense of accord and satisfaction.

3. When in such a case the jury finds from conflicting evidence that plaintiff's demand is liquidated and there is a conflict in the evidence as to whether there was a bona fide dispute between the parties at the time of the acceptance of the less amount in full settlement, the jury must go further and determine whether such a bona fide dispute then existed and upon a determination of that issue in favor of the defendant, the defense of accord and satisfaction is made out.

This action was brought on Cotober 13, 1939, in the Court of Common Pleas of Wood county, Ohio, by the plaintiff, Huo Chin Yin, a resident of the state of New York, against Amino Products Company, an Ohio corporation, for commissions alleged to be due him in the sum of $6,764.42, plus interest on sales of monosodium glutamate, also known as amino salts a product manufactured by the defendant company and used extensively by the Chinese.

The defendant, Amino Products Company, denied there was any amount due plaintiff and set up the defense of accord and satisfaction.

This case has been tried twice. On the first trial there was a judgment in favor of the plaintiff for $7,183.50 which was reversed by the Court of Appeals of Wood county upon the ground that the verdict was against the manifest weight of the evidence. On the second trial there was a judgment for plaintiff for $7,716.39. The Court of Appeals also reversed that judgment and in addition entered final judgment in favor of the defendant. Thereupon this court allowed a motion to certify.

Upon the second trial, except for the calling of the official court reporter to read from testimony given on the former trial, there were but two witnesses, Huo Chin Yin, the plaintiff, and A. E. Marshall, vicepresident of the defendant company.

It is undisputed that early in 1938 the plaintiff was employed by the defendant to sell its product, amino salts, in China and was instrumental in bringing about sales to P. N. Woo, director and factory manager of the Tien Chu Ve-Tsin Manufacturing Company located in China. The sales to this customer consisted of four separate orders as follows: April 13, 1938, 25,000 pounds; June 13, 1938, 100,000 pounds; September 26, 1938, 200,000 pounds and January 3, 1939, 288,000 pounds.

Previous to the employment of the plaintiff the defendant had done little business in this product; but in fulfillment of the four orders from May 18, 1938, to January 29, 1940, 475,000 pounds were shipped by the defendant to Woo at an aggregate price of $442,077. Eight separate shipments were made in the year 1938, eight in 1939 and one in 1940, all before the filing of the third amended petition upon which the action was tried. On these shipments plaintiff claims commissions in the sum of $11,764.42 or, $5,000 having been paid thereon, a balance of $6,764.42.

Regarding the first order obtained by plaintiff, which amounted to 25,000 pounds at ninety-six cents per pound or $24,000, there was originally a dispute as to the amount of plaintiff's commission. Plaintiff claimed the agreed commission was five per cent on ninety-two and one-half cents per pound plus half the difference between ninety-two and one-half cents and the selling price (if higher) on all sales to 'China customers' brought in by him. Defendant claimed the commission was to be five per cent on ninety-five cents per pound plus half the difference between ninety-five cents and the selling price, if higher. The matter was settled finally by the payment of $1,312.50, the amount due according to defendant's version of the contract. This first order is not in controversy in this case.

Regarding the agreement for a two and one-half per cent commission which plaintiff claims on shipments in fulfillment of orders subsequent to the first, he testified in substance as follows:

After the settlement of the dispute regarding the first order, A. E. Marshall, representing the defendant, insisted to plaintiff that the commission be reduced to two and one-half per cent straight on all orders after the first. Plaintiff protested but finally accepted two and one-half per cent as commission on all sales by defendant to Woo or other Chinese customers and requested the contract be put in writing. Upon being assured by Marshall that he would personally guarantee to him the two and one-half per cent commission on sales to Woo and other customers plaintiff brought in, the plaintiff agreed to the proposal without a writing.

Marshall testified regarding a proposed order of 150,000 pounds that about June 1, 1938, he had told the plaintiff that 'if the order came along to us and we received that order the amount that we would pay him would be two and a half per cent.' Later plaintiff called Marshall over the telephone and told him that he did not think that two and one-half per cent was a sufficient amount and Marshall told the plaintiff to write to Mr. Larrowe, who was president of the defendant company. Thereafter on or about October 5, 1938, Mr.

Larrowe in behalf of the defendant company, paid plaintiff a commission of two and one-half per cent on three shipments of 30,000 pounds each, amounting to $2,152.50 and covered 90,000 pounds of the second order.

According to testimony given by A. E. Marshall, the plaintiff's commissions covered only the first and second orders. We quote from his testimony:

'Q. Tell us what was said by you and Mr. Yin? A. Mr. Yin reviewed the happenings in connection with the Tien Chu Ve-Tsin Manufacturing Company orders and said that he felt that he had been unfairly treated by Amino Products Company. That in the beginning he had been given a rate of commission on a specified order, that subsequently he had been given a lower rate of commission on a second specific order and that he felt that some arrangement should be made with Amino Products Company that there should be something in writing so that he would be properly protected on the rest and continued commissions on their business that might come to the company from P. N. Woo, or the Tien Chu Ve-Tsin Manufacturing Company. On that particular day I told Mr. Yin that the amounts we had paid him were commissions on specific orders that had reached us, they were allowed on the transactions as we had gotten along, that the payments we had made to him were substantial and regarded as a 'finder's fee' and that as far as Amino Products Company was concerned it was my own view, which I felt was surely Mr. Larrowe's view, that no future commission would be paid him. That was on the 14th day of November [1938].'

On cross-examination Marshall further testified:

'Q. Did you state that if there was prospect of any other business, or other business coming you would give two and a half per cent for any future business. Did you? Yes or no? A. Yes.'

On December 30, 1938, plaintiff and Marshall met in New York city. Marshall stated that his company was going to pay plaintiff in all $5,000 or a balance of $1,535. Previously $1,312.50 had been paid as commission on the first order and $2,152.50 to apply on the second order. Plaintiff refused to accept that amount and demanded two and one-half per cent on all sales to Woo and other Chinese individuals.

On January 9, 1939, the plaintiff wrote to the president, James E. Larrowe, and among other things he asked for a check for commissions due him on all shipments and stated that he had talked to Woo about 'the possibilities of developing new business at this end.' On January 12, 1939, Larrowe wrote a letter to plaintiff advising him that Woo had signed an agreement for a half-year's business but did not mention further payment of commissions other than appears in the last paragraph, which reads:

'In accordance with our agreement with you made by our Mr. A. E. Marshall we are enclosing with this our check for $1,535 as payment in full of any and all amounts due you from us, including finder's fee in connection with our business with Mr. P. N. Woo.'

According to plaintiff's testimony no such agreement of settlement was ever entered into between him and Mr. Marshall.

After plaintiff had read this letter in evidence he testified thus:

'Q. Did you ever Before, or in any conversation with any representative of Amino Products Company discuss the term finder's fee which is referred to in that letter? A. No. This is the first time I saw these two words. Never seen them or read them before .'

On January 13, 1939, the plaintiff in a letter to defendant stated: 'I do not propose to submit now to any further reduction or to any alteration of our agreement;' but he kept the check and applied it upon the amount owing for commissions.

As a result of the allowance of a motion to certify, as heretofore stated, the cause is here for review and final determination.

J Albert Lowell, of Cleveland, Moses Lane, of Bowling Green, and Albert E. Kane, of New York City, for appellant.

Marshall Melhorn, Wall & Bloch, of Toledo, Bowman, Hanna & Middleton, of Bowling Green, and George F. Medill, of Toledo, for ...