J. I. Case Threshing Mach. Co. v. Loomis

• Decision Date: 02 July 1915
• Citation: 153 N.W. 479,31 N.D. 27
• Parties: J. I. CASE THRESHING MACH. CO. v. LOOMIS.
• Court: North Dakota Supreme Court

31 N.D. 27

153 N.W. 479

J. I. CASE THRESHING MACH. CO.

v.LOOMIS.

Supreme Court of North Dakota.

June 2, 1915.

On Petition for Rehearing, July 2, 1915.

Syllabus by the Court.

Where a written contract of employment of a selling and soliciting agent provides that such agent shall receive a 10 per cent. commission on the sales made and accepted under his contract, and further expressly provides that “no commission shall be allowed for sales made where other goods or property is taken in part payment,” with proof that such agent introduced to his employer a customer, who before such introduction had told the agent that he would purchase a threshing machine from such employer if it was satisfactory to him, and later went with such agent to the office of the employer, and there said that he would purchase such machine if satisfactory to his son, but would make no definite contract at the time, a conversation also being held at such time in the presence of the employer and of the agent in relation to the taking of a secondhand machine in trade, and the would-be purchaser and the agent returned without making a definite contract, and later the purchaser returned to the office of the principal with his son and approved of the machine, and made a contract with the employer for its purchase on condition that he could turn in a secondhand machine in part payment, and which agreement was consummated, such agent is not entitled to a recovery upon the written contract of the 10 per cent. commission provided for in said agreement.

The word “sell” is not synonymous with the terms “barter” and “dispose of.” It involves a money transaction (citing Words and Phrases, Sell; see, also, Words and Phrases, First and Second Series, Barter; Dispose of).

A contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise. Section 5938, Comp. Laws 1913.

A threat to cause a contract to be broken which another has made is not a valid consideration for a new contract between the person who makes the threat and the one who is threatened.

A waiver of a material clause of a contract must, in order to be relied upon, be specially pleaded.

Appeal from Ransom County Court; Thomas, Judge.

Action by the J. I. Case Threshing Machine Company, a corporation, against W. J. Loomis. From judgment for defendant on counterclaim, plaintiff appeals. Reversed, with directions to enter judgment for plaintiff, and rehearing denied.

This action was tried to the court, a jury having been waived. It was brought by the plaintiff and appellant threshing machine company to recover from the defendant and respondent the sum of $135.90 for merchandise furnished. The defendant admitted the debt, but set up a counterclaim in the sum of $420 for a commission claimed to have been earned by the defendant in the sale of a threshing machine. Both parties moved for a directed verdict. The trial court granted the motion of the defendant, and from the judgment for the difference between the amount originally sued for and the said counterclaim, namely, $396.31, the plaintiff appeals.

Goss and Burke, JJ., dissenting.Lawrence & Murphy, of Fargo, for appellant. Charles G. Bangert, of Enderlin, for respondent.

BRUCE, J. (after stating the facts as above).

[1] The question before this court is whether the defendant was entitled to a commission of 10 per cent. on the sale of the threshing machine in question and by the terms of his contract of agency. Plaintiff and appellant contends that he is not, as the machine was not sold for cash, but an old threshing machine was taken in part payment thereof, and the contract of agency expressly provides that:

“No commission shall be paid * * * upon goods sold or exchanged for other goods on account of alleged defects; nor upon sales made where other goods or property is taken in trade or as part payment, unless at the option of the company said dealer accepts such goods or property as his commission, and promises in writing to pay the company at the time of the delivery and settlement the amount necessary to make up the net price of the new goods; nor upon any sale not recommended by the dealer in writing upon the company's 1910 order blanks; nor upon any goods sold to purchasers who seek to purchase at the company's factory, transfer agency, or branch house, unless accompanied by the dealer.”

Defendant, on the other hand, claims that such provision, even if applicable to the sale before us, is void as against public policy, and that, seeing that the company's officers completed the sale, the defendant should not be deprived of his commission because they saw fit to take a secondhand engine in part payment. If the evidence had shown in this case, as it does not, that the defendant had furnished a buyer who at the time he was presented to the company was ready and willing to make a cash purchase or the equivalent thereof, but was afterwards permitted by the company to modify such offer or agreement to the extent of turning in a secondhand machine as part of the purchase price, we would have been confronted with a very different proposition than that which is now before us. Defendant, however, clearly relies and sues upon his contract of agency and for the 10 per cent. commission which is allowed thereby, and there is no proof whatever in the record that the purchaser ever at any time agreed with any one for a cash purchase or for the equivalent thereof, and there is therefore no showing that the defendant was ever at any time under such contract entitled to the 10 per cent. commission which he sues for.

This contract was a “dealer's” contract. It granted to the dealer and “in consideration of the premises” permission “to take orders for its [plaintiff's] machinery, extras, supplies, and repairs.” It nowhere, except in the provision hereinbefore referred to, makes any mention of deals for anything but cash or properly secured notes. It expressly provides that machinery shall be delivered “only for cash, or to responsible purchasers who give ample security for all time payments with interest thereon”; that written orders shall be taken for all machinery, “whether for cash or notes upon the company's 1910 order blanks.” It speaks only of orders, and not of sales, as far as machinery is concerned, and these orders are to be sent to the company for acceptance. It provides for a commission of 10 per cent. on orders for threshing machines which are accepted, but it further contains the provision that:

“No commission shall be allowed for sales made where other goods or property is taken in as part payment, unless at the option of the company said dealer accepts such goods or property as his commission, and promises in writing to pay the company at the time of delivery and settlement the amount necessary to make up the net price of the new goods; nor upon any sale not recommended by the dealer in writing upon the company's 1910 order blanks.”

Counsel for respondent is not correct in his assumption that the contract provides for a 10 per cent. commission unless an option to take the secondhand machinery is given to the agent. It positively states that no such commission shall be allowed unless the option is both given and accepted. It is therefore quite clear that the proof which was adduced did not justify a recovery upon the cause of action which was sued upon; that is to say, under the written contract of agency. Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661;Yancy v. Boyce, 28 N. D. 187, 148 N. W. 539;Egan v. Burnight (S. D.) 149 N. W. 176;Huber Mfg. Co. v. Sebold, 14 Ind. App. 109, 42 N. E. 648;Reeves & Co. v. Watkins (Ky.) 89 S. W. 266.

It is claimed, it is true, that whether a commission shall be allowed in case of a trade is by the terms of the contract left to the option of the company, and that such a provision is harsh and one-sided, and therefore void as against public policy. This question, however, we are not called upon to determine. All that is necessary to say is that, even if this clause of the contract had been stricken out, there is nowhere in the contract a provision for any commission on anything but a cash sale or the equivalent thereof.

It is true that there is in the record proof of a conversation with an agent of the company in which an offer was made to allow the defendant the option of accepting the secondhand machine or of guaranteeing the sale thereof, and that during such conversation the agent told the defendant that unless he accepted such option the deal could not be made; that the defendant told the agent that they (the company) would have his permission to break the deal, and that, rather than guarantee the sale of the secondhand machine or accept it himself, he would break the deal, would try and stop the deal right there, try and get Oelke to break the contract; that upon receipt of this statement from the defendant the agent informed him that he would take the matter up with Hanson, the branch house manager of the company, which he did, and later came back and said he guessed it would be all right, that Hanson would let the deal go on through without any signing. There is no evidence, however, that commissions were spoken of during these transactions. In fact, the defendant testifies positively that they were not, nor is there any evidence of any agreement to waive the provision in the contract which provided that no commission should be received in case of a trade. On cross-examination the defendant testified:

“Q. As I understand the testimony you gave, it was to the effect that Gonlogson asked you to take the old rig they traded in, and pay the company the amount they had invested that they would have to have to make up their net? A. Yes, sir. Q. That was about the substance of it? A. Yes, sir. Q. And you refused to do that? A. Yes, sir. Q. What did Gonlogson say then? A. He claimed that that was the order from the branch house managers that he had...