J. A. Fay & Egan Co. v. Brown Machinery Co.

• Citation: 14 S.W.2d 491
• Decision Date: 05 March 1929
• Docket Number: No. 20581.,20581.
• Parties: J. A. FAY & EGAN CO. v. BROWN MACHINERY CO.
• Court: Missouri Court of Appeals

14 S.W.2d 491

J. A. FAY & EGAN CO. v. BROWN MACHINERY CO.

No. 20581.

St. Louis Court of Appeals. Missouri.

March 5, 1929.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

"Not to be officially published."

Action by the J. A. Fay & Egan Company against the Brown Machinery Company, in which defendant filed a counterclaim. From the judgment, plaintiff appeals. Judgment affirmed in favor of plaintiff on its petition, and reversed and remanded, with directions to enter new judgment on counterclaim conditionally.

Grant & Grant and Robert T. Burch, all of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards and Edwin C. Luedde, all of St. Louis, for respondent.

HAID, P. J.

This action was founded upon an indebtedness owing plaintiff by defendant for the purchase price of $1,741.78 for certain machinery manufactured by the plaintiff and delivered to the defendant on September 12, 1925, at which time demand of payment was made therefor, and suit was instituted July 16, 1926.

In response to the petition, the defendant filed, on April 8, 1928, a second amended answer and counterclaim. In the counterclaim it alleged that on March 28, 1921, a certain agreement was made and entered into by and between defendant and plaintiff whereby plaintiff agreed, in consideration of defendant having commenced negotiations between plaintiff and a certain company, known as the Missouri Car Company, for the purchase of machinery by the latter from plaintiff, and in consideration of defendant's services in assisting plaintiff to procure an order or orders from said car company for woodworking machinery, that plaintiff would pay defendant a commission of 10 per cent. of the amount of such order or orders as plaintiff obtained from said car company, except that such commission should not apply on electrical motors furnished by others than the defendant, but should apply on motors as were special or were built into the various machinery sold by plaintiff. The counterclaim then alleged a custom of manufacturers to pay such commission. It further alleged that defendant fully performed the terms and conditions of said contract to be performed by it, and that it opened negotiations between plaintiff and the car company for the sale of machinery manufactured and sold by plaintiff, gave plaintiff the name of the car company as a new and original customer, and that defendant continued to negotiate in behalf of plaintiff with said car company, and assisted plaintiff to procure an order or orders from the car company, and that there-after, on October 27, 1922, as a direct result of the transaction, dealings, and negotiations carried on by defendant with the car company, and as a direct result of the efforts of defendant, as well as of the plaintiff, and as a direct result of defendant having originally brought plaintiff and the car company together, the car company ordered and purchased of plaintiff certain machinery for which it agreed to pay plaintiff the sum of $25,000, and defendant in its counterclaim, therefore, demanded the payment to it of the sum of $2,500. Plaintiff filed a general denial.

It appears from the record that, prior to the transaction and controversy, defendant had other transactions with plaintiff in which the defendant was allowed to purchase machinery or sell on a percentage or discount or commission several times; that the car company was organized for the purpose of building street cars, had an office in St. Louis, and its factory was to be in East St. Louis; that Mr. Brown, the president of the defendant company, first learned of the car company ordering machinery in August, 1920; and that subsequently two representatives of the car company called at the defendant's place of business and had negotiations for the purchase of machinery, including machinery manufactured by plaintiff. On December 17, 1920, defendant wrote to one Temple, a representative of plaintiff in St. Louis, stating that it was in the market for certain woodworking machines. Mr. Temple, who happened to be in Little Rock, wrote, stating that he would be back in St. Louis shortly, and requested information as to what state the tools were to be shipped to, as he could "only quote in St. Louis territory." This letter was written on the stationery of the plaintiff company bearing a notation, "District Sales Office, 9th & Amherst Ave., Bell Phone Cabany 2637, St. Louis, Missouri." On December 27, 1920, the defendant wrote to Mr. Temple stating the machinery inquired about was for a new company in St. Louis territory, and requested him to give "your regular re-sale prices to the user and discount to us and we will be glad to work with you on this deal." On December 29, 1920, Mr. Temple wrote defendant, among other things, that, if "the parties are ready to close up, I could return to St. Louis at once and work with you to the finish." On December 30 the defendant wrote Mr. Temple that defendant had special arrangements with the car company in regard to machinery equipment which would enable it to place their requirements, and requested that Mr. Temple "drop in as soon as you can and we will get together and take the matter up in detail and work together on the deal." On January 1, 1921, Mr. Temple wrote, on similar stationery, advising that he would return on January 9th or 10th, and that "upon my arrival I will be glad to work with you on the deal and trust we may be able to close it up promptly."

Mr. Brown testifies that in the early part of January, 1921, in the presence of defendant's vice president, Mr. Weller, Mr. Temple informed defendant that he had not been working with the new company, and Mr. Brown then offered to give its name to Mr. Temple, if the latter would protect defendant on the deal; that later Mr. Brown and Mr. Temple called on the car company, and compiled a list of machinery which Mr. Temple submitted to plaintiff at Cincinnati, and had them make quotations covering machinery for the car company. On March 21, 1921, plaintiff wrote defendant that "we have a communication from our Mr. J. B. Temple, who represents us in your locality, and who makes his headquarters at No. 9 Amherst Avenue, your city, in which he submits a list of tools that will be purchased by the Missouri Car Company. * * * In compliance with Mr. Temple's request we are making up a proposition on the entire list and forwarding it to him, which we presume he will duly deliver to you or to the Missouri Car Company." Mr. Brown suggested to Mr. Temple that they should have an agreement protecting defendant on its commission, and thereupon, under date of March 28, 1921, upon the letterhead of the defendant, Mr. Temple wrote, "Referring to the quotations of March 21, covering on equipment for the Missouri Car Company, beg to state that the prices as quoted carry a commission of 10%." On the same day Mr. Temple wrote the defendant that "Relative to the 10% discount, the writer takes it for granted that this 10% discount does not apply on the electric motors * * * in other words, the 10% discount is to apply on all woodworking machines," etc. On March 30, 1921, the plaintiff wrote the defendant, "We just received a report from our Mr. J. B. Temple, who makes his headquarters at No. 9 Amherst Avenue, your city, and who represents us in your territory," etc.

Witness testified that, after receipt of this letter, he made several trips to the office of the car company. On July 18, 1921, plaintiff wrote defendant to inquire "if your customer is now ready to take up for consideration the installation of these machines." This letter bears the notation, "Representative: Mr. J. B. Temple, No. 9 Amherst Place, St. Louis, Missouri." Mr. Brown further testified that he and Mr. Temple continued to call on the Missouri Car Company. On March 17, 1922. Mr. Temple wrote, on stationery similar to that above noted, to the effect that prices named were the very lowest given any one, and that "it is understood that you are to receive a 10% commission on this sale, and this is giving you this in strict confidence, and trust that you treat this concession in confidence," etc.

Witness further testified that, subsequent to all this correspondence, he and Mr. Temple continued to work on the deal, and he later learned that there was an order given about October, 1922, but he was not present when it was given, and learned of it some two or three months after it was placed. It was shown that the plaintiff sold the car company machinery of the price of $28,389.80 for $25,000. On June 19, 1923, defendant wrote plaintiff asking it to render defendant a credit memorandum covering its percentage on the sale of equipment to the car company as agreed upon in writing with Mr. Temple; that he never received a reply to this letter. On September 21, 1925, plaintiff called defendant's attention to the fact that its bill of $1,741.78 had not been paid. In reply to that letter, plaintiff wrote under date of September 22 that it was ready to pay, but asked that it be furnished with a credit memorandum covering the 10 per cent. commission on sales to the Missouri Car Company, "as per agreement with you."

On cross-examination this witness (Mr. Brown) testified that Mr. Temple told him the latter had not heard of the Missouri Car Company, and was not working on the deal, and that Mr. Temple agreed to protect the defendant in consideration of defendant giving the name of the company the witness had been negotiating with. The witness also testified that, in purchases made of the defendant, the plaintiff had always allowed the defendant a discount or commission for resale, and that, in purchases by defendant for resale, unless something was said, defendant bought on 30-day terms.

Defendant introduced another witness who testified he was present at defendant's office at the time of the conversation between Mr. Brown and Mr. Temple, and heard Mr. Brown ask Mr. Temple if he was figuring with...