L. G. Balfour Co. v. Brown

• Decision Date: 29 October 1937
• Docket Number: No. 13608.,13608.
• Citation: 110 S.W.2d 104
• Parties: L. G. BALFOUR CO. v. BROWN.
• Court: Texas Court of Appeals

110 S.W.2d 104

L. G. BALFOUR CO. v. BROWN.

No. 13608.

Court of Civil Appeals of Texas. Fort Worth.

October 29, 1937.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Suit by the L. G. Balfour Company against A. H. Brown and another, wherein the defendant A. H. Brown brought cross-action against plaintiff. From a judgment for defendant after a trial to the court without a jury, plaintiff appeals.

Reversed and remanded.

Mann, Irion & Mann, Gerald C. Mann, and M. R. Irion, all of Dallas, for appellant.

McGown & McGown, John M. Scott Jr., and B. E. Godfrey, all of Fort Worth, for appellee.

SPEER, Justice.

L. G. Balfour Company, a corporation, instituted this suit in the Sixty-Seventh district court of Tarrant county, Tex., against A. H. Brown, a former employee, and Stella M. Brown as a surety on his fidelity bond, for conversion by A. H. Brown of college, school, fraternity, and commercial jewelry and other merchandise delivered to A. H. Brown for purposes of sale and to be used as samples while in the discharge of his duties under his employment. The plaintiff also sought to recover certain furniture, or, in case it could not be found, its value, furnished to Brown with which to equip an office, the better to enable him to represent it. Recovery was also sought for a deficit alleged to be due plaintiff by Brown growing out of former accountings between the parties.

The company failed to recover and has appealed. The plaintiff below is appellant here, and, since the surety is only interested as such, for convenience we shall refer to A. H. Brown as appellee.

Appellant based its cause of action on two written contracts, with supplements and addenda to each, the one dated March 10, 1932, covering the intervening time between that date and June 1, 1933; the other dated June 1, 1933, and extending to June 1, 1934; that the last contract provided, among other things, as follows: "And so from year to year covering the same months unless otherwise terminated as hereinafter provided."

Allegation was made that the last contract provided that it could be terminated at the option of the company for any breach of its terms by appellee and further that it could be terminated by either party for any cause by giving written notice to the other party for thirty days of such an intention.

Briefly stated, it was alleged that under these contracts appellant employed appellee to sell college and school jewelry, programs, and other articles on a commission basis; the petition contained copies of the contracts showing the commissions and bonuses promised in consideration of services performed; and it is upon a construction of these contracts and commissions promised and the right of termination of the contracts that precipitated this litigation.

It appears that the whole controversy arose after June 1, 1934, and while the parties were operating under the agreement that the contract should continue to be effective during the same period each year until terminated in one of the ways provided for therein.

Appellant asked for judgment for $516.50 and for general relief.

Appellee answered with a general denial, and in cross-action against appellant under the contract and its extension. He specially pleaded that he was not indebted to appellant in any sum and that he had not converted the office furniture but that he claimed title thereto; that appellant was indebted to him for accrued commissions on sales shown in his pleadings in cross-action; the items set out aggregate approximately $1,487.42; he pleaded, in the alternative, that, if it should be determined that he did not own the furniture in question but that it belonged to appellant, he had incurred an item of expense in its preservation since he ceased to use it in connection with his employment with appellant, amounting to $72; that the first amount shown, together with the latter item of $72, amounted to a total indebtedness due him from appellant in the sum of $1,559.42, for which he prayed judgment.

The pleadings are lengthy, those of appellant contained the several contracts and subsequent agreements, and each contain a mass of items, such as statements of merchandise billed, accounting of collections and remittances, credits, debits, and various calculations of percentages and commissions; the statement of facts covers 470 pages, to which is attached fifty or more exhibits made up of groups of photostatic copies of statements, billings, calculations, and correspondence.

The case was tried to the court without a jury. Judgment was entered against appellant on its alleged action for debt, and in favor of appellee, A. H. Brown, on his cross-action for $732.13. The judgment also shows that the amount was arrived at by a finding that the claims of all parties grew out of the contracts sued on by appellant, and that appellee was indebted to appellant in the sum of $274.90, and that appellant was indebted to Brown in the sum of $1,007.03; deducting the former from the latter gave the amount for which judgment was rendered. The judgment further recited that, Stella M. Brown being a surety only for A. H. Brown, and there being no sum owing by A. H. Brown to appellant, there was no liability upon the part of the surety and she is discharged with her costs.

At the request of appellant, the trial court filed findings of facts and conclusions of law, apparently covering every controverted issue in the case; there are thirty-one of these findings of fact and eight "conclusions of law." Many of the fact findings of the court are attacked by appellant as being without support either in the pleadings or testimony. These attacks are embraced within fifteen assignments of error and discussed in the brief under five propositions.

The first proposition is said to be germane to assignments of error Nos. 1, 6, 7, 8, 13, and 15. The determination of this proposition is largely the controlling issue in the controversy. The substance of the proposition is that the parties operated under a written contract until August 22, 1934, which provided that appellee should receive for his services commissions on his own sales, and in addition thereto a special bonus of 10 per cent. on the net prices and also a bonus of 10 per cent. of the net prices on salesmen working under his supervision, and that the contract also provided that such conditions existed so long as the employee's services were satisfactory to the company; but that on August 22, 1934, the appellant advised appellee, in writing, the bonus thereafter, under said contract, would be reduced to 5 per cent. on subsalesmen's sales and 2 per cent. on appellee's own sales; in the same letter agreeing to wipe out a deficit for which appellee was responsible; that appellee protested the change made by appellant in the contract, but, having reached no mutual agreement about the matter, the appellee continued to work for appellant until in June, 1935, when he resigned, receiving compensation as provided in appellant's letter of August 22, 1934; therefore he was not entitled to claim, when sued, settlement under the written provisions of the contract, but is bound by the change made by appellant in its letter of date August 22, 1934.

A stipulation in the contract reads: "This contract may be determined at any time at the option of the company upon a breach of any of the conditions of this contract and may be terminated at any time during said term by either party, for any other reason, upon thirty days notice in writing of the intention to so do first being given to the other party, or by mutual consent in writing of the parties hereto. * * *"

The contracts, the agreements of ratification, and the addenda to each perhaps conveyed to the interested parties the nature of appellee's employment, his duties and compensation to be received until in August, 1934, when the appellant claims to have effectively terminated the original...