L.S. Cogswell Lumber Co. v. Manahan
| Decision Date | 19 February 1929 |
| Docket Number | 18773. |
| Parties | L. S. COGSWELL LUMBER COMPANY v. MANAHAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A contract, made by a dealer of building materials with an employee of a purchaser, to pay such employee a 2 1/2 per cent. commission on all materials purchased for the account of his employer, with the consent and approval of the employer, is not illegal and void as being contrary to public policy.
It is essential that all points, upon which counsel rely for a reversal of a cause, be made in the brief and properly made if not so made, they are waived. It is not enough to assert in general terms that a ruling of the trial court is wrong; a fair effort must be made to prove that it is wrong, or the point will not be considered as having been made.
The overruling of a motion for a new trial, based on the ground of newly discovered evidence, is not error, where the record shows that the new evidence would be the same as that of another absent witness of whose whereabouts and evidence the complaining party knew in time to have requested a continuance of the cause for the purpose of obtaining a deposition containing such evidence, and there appearing that no such request was made.
Commissioners' Opinion, Division 1.
Appeal from Court of Common Pleas, Tulsa County; Wm. N. Randolph Judge.
Action by F. B. Manahan against the L. S. Cogswell Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.
E. M Connor, of Tulsa, for plaintiff in error.
Woodard & Westhafer, of Tulsa, for defendant in error.
Our reference to the parties in this cause will be according to their trial positions where they appeared in the reverse order of their appearance here.
For his cause of action plaintiff, F. B. Manahan, declared on an oral contract where-under he alleged that defendant, L. S Cogswell Lumber Company, had agreed to pay him a commission of 2 1/2 per cent. on certain building materials in the value of $20,315.50, which he purchased from defendant for the account of a third party, whereon defendant had paid a part of the commission, leaving a balance of $237.77 due, which defendant had refused to pay. Under defendant's answer thereto and plaintiff's reply, the issue framed was whether or not the contract sued on was illegal and void, in that it was contrary to public policy, for that the alleged contract constituted a breach of trust reposed in plaintiff by his employer, for whose account the materials were purchased.
At the trial before a jury, plaintiff proceeded on the theory that defendant was estopped to raise the issue of the illegality of the contract, in that the same was entered into with the knowledge and consent of both the defendant and plaintiff's employer at the time of the making thereof. Verdict went for plaintiff with judgment thereon for the amount claimed to be due.
The first complaint of the judgment to be considered, in the order of sequence, is that the court erred in overruling defendant's demurrer to plaintiff's evidence. The demurrer was based on the proposition that, as it was necessary to prove an illegal and void contract in order to sustain the action, plaintiff for that reason could not recover. This necessitates our notice of the salient points of the evidence. Substantially these were that plaintiff at the time of the alleged contract was an employee as general manager of Jennings and Robards, who were engaged in the construction of a number of cottages. Among other duties it was plaintiff's business to purchase the building materials, hire the labor, and act as a general superintendent in the construction of the cottages. Defendant, as shown from its title, was engaged in the business of a vendor of building materials. Plaintiff submitted to one A. W. Hine, who was the secretary and treasurer of defendant and in charge of the business, an estimate of certain materials to be used in the construction of the cottages, and requested an estimated cost therefor. In the negotiations, plaintiff informed Hine that his estimated cost was about the same as had been furnished by other dealers, one of whom had offered plaintiff a discount of 5 per cent. if the materials were purchased from that concern. This rate Hine could not give, but offered to give plaintiff direct a 2 1/2 per cent. commission if he would purchase the materials from defendant, which was agreed to. Thereupon plaintiff called this to the attention of his employer, Jennings and Robards, who came to defendant's office and went over the estimate as prepared, and upon being requested for a 2 1/2 per cent. discount, Hine informed them that this could not be done, as he had agreed to give plaintiff, their employee, a 2 1/2 per cent. commission, to which both partners of the firm of Jennings and Robards agreed and consented. Hine also testified that this arrangement was brought to the attention of L. S. Cogswell, the president of the corporation defendant, who approved the same. The contract was entered into in the fall of 1924, not long after Hine was employed by defendant. Hine continued in defendant's employment until February, 1926. There were payments on the commission contract, as payments were made on the account by plaintiff's employer.
Thus from the evidence demurred to, it is clear that the commission agreement was entered into with the knowledge and consent of both the seller and the purchaser. Notwithstanding these circumstances, defendant contends that the contract was illegal and void on the high ground that the same was contrary to public policy. This is tantamount to the proposition that a contract in which there inheres the element of invalidity is incapable of ratification. O'Conner v. Johnson, 107 Okl. 5, 229 P. 146; McLain v. Oklahoma Cotton Growers' Association, 125 Okl. 264, 258 P. 269. The proposition thus is resolved into the question of whether or not the contract in the cause at bar was incapable of ratification. Of this class of contracts in Harriman on Contracts (2d Ed.) 115, § 210, it is said: ...
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