J.I. Case Threshing Mach. Co. v. Fisher & Aney

• Decision Date: 29 September 1909
• Citation: 122 N.W. 575,144 Iowa 45
• Parties: J. I. CASE THRESHING MACHINE CO. v. FISHER AND ANEY
• Court: Iowa Supreme Court

122 N.W. 575

144 Iowa 45

J. I. CASE THRESHING MACHINE CO. v. FISHER AND ANEY

Supreme Court of Iowa, Des Moines

September 29, 1909

Appeal from Polk District Court.--HON. JESSE A. MILLER, Judge.

ACTION on promissory notes. Counterclaims for commissions on the sale of machines for plaintiff and for money agreed to be paid. There was no defense to the notes, but on the counterclaims there was a trial to a jury and verdict in defendants' favor for $ 950.44. The court sustained plaintiff's motion for new trial so far as it applied to one of the items of counterclaim, and rendered judgment in defendants' favor for $ 577.27. Plaintiff appeals from this judgment, and defendants appeal from the ruling granting a new trial as to the one item of counterclaim. Plaintiff having first appealed, will be designated the appellant.

Affirmed.

Guernsey Parker & Miller and Carey, Upham & Black, for appellant.

Read & Read, for appellees.

OPINION

MCCLAIN, J.

Issues as to the three separate counterclaims were submitted to the jury, and the only questions presented on the appeals relate to the submission and determination of these issues. The facts which were without dispute were that from 1900 to the time of bringing suit defendants were local agents for plaintiff at Underwood for the sale on commission of wind stackers manufactured by plaintiff. Defendants were at the same time engaged in selling on commission for the Russell Wind Stacker Company similar machines. Both plaintiff and the Russell Company were manufacturing these machines under licenses from the Indiana Manufacturing Company, and were bound under penalty not to sell for less than a specified price. Defendants made to plaintiff's agent the claim that they could procure wind stackers from the Russell Company on more favorable terms than those given them by plaintiff for the sale of similar machines of plaintiff's manufacture. The facts in dispute were as to whether plaintiff agreed to allow defendants additional commissions for machines of plaintiff sold during 1900 and 1901, if defendants could procure evidence that the Russell Company were selling similar machines at a lower price, and further agreed at a subsequent time to pay defendants $ 1,000 for evidence that the Russell Company was selling such machines on better terms than those on which the machines could be sold by the plaintiff under its license from the Indiana Company.

I. The significance of the alleged contracts to allow defendants additional commissions and pay them a further sum of money if defendants could procure evidence that the Russell Company was selling wind stackers covered by the patent owned by the Indiana Company will be understood when it is stated that the plaintiff company was engaged in litigation with the Indiana Company in which it was important to plaintiff to show that the Russell Company was violating its contract with the Indiana Company to sell such machines on the same terms as those provided for in the license from the Indiana Company to plaintiff. The plaintiff as appellant contends that the alleged oral agreements above referred to were void because they contemplated a fraud to be committed by defendants towards the Russell Company, and a breach of trust between them existing by virtue of the confidential relations of principal and agent, also, because they contemplated and provided for a breach of contract between defendants and the Russell Company, and because they amounted to a conspiracy between defendants and plaintiff to bring about a breach of such contract and the contract between the Russell Company and the Indiana Company. It is further contended that these contracts relied on by defendants were illegal, in that they contemplated the procurement of evidence to be used by plaintiff in its suit against the Indiana Company. The evidence does not show, however, what the contract relations between defendants and the Russell Company were further than that defendants called themselves agents for the sale of machines for the Russell Company, and as such agents ordered a machine for sale on commission, agreeing to pay therefor, which order, accepted by the Russell Company, was turned over to the agent of plaintiff. These facts do not establish the breach of any confidential relations. There is no magic in the mere name of agent. A commission merchant is an agent, but he does not necessarily occupy a position of trust and confidence to his principal. His obligation may be simply to act in good faith with reference to disposing of the property of his principal, and making payment therefor. There is no evidence that the Russell Company was to be cheated out of its property, nor that the price at which it could be sold was made confidential as a condition precedent to the making of the contract.

Had defendants been subpoenaed as witnesses in the suit between the plaintiff and the Indiana Company, they could without question have been required to testify as to their arrangement with the Russell Company, and we fail to see any good reason why they could not properly furnish the plaintiff the written evidence as to such arrangement. There was no fraud necessarily involved in dickering for the best terms to be procured, nor in making use of the terms secured in getting better terms from plaintiff. If, then, the plaintiff on being satisfied that defendants were able to get better terms from the Russell Company than it was offering, saw fit to add a further commission on business already done for it...