Maclaren v. Windram Mfg. Co.

• Decision Date: 29 June 1934
• Citation: 287 Mass. 221,191 N.E. 347
• Parties: MacLAREN v. WINDRAM MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 221

191 N.E. 347

MacLAREN

v.WINDRAM MFG. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1934.

Report from Superior Court, Suffolk County; Bishop, Judge.

Action on contract by Alfred A MacLaren against Windram Manufacturing Company, wherein there was a verdict for the plaintiff in the sum of $6,890.68. On report.

Judgment for plaintiff on the verdict.

L. J. Dunn, of Boston, for plaintiff.

Ropes, Gray, Boyden & Perkins, Charles C. Cabot, and R. Ely, all of Boston, for defendant.

CROSBY, Justice.

This is an action of contract by which the plaintiff seeks to recover damages for breach of an alleged contract. The case was tried in the Superior Court before a jury, and a verdict was returned in favor of the plaintiff in the sum of $6,890.68. The case is before this court upon a report of the presiding judge.

The report recites that a few days prior to November 1, 1928, the plaintiff suggested to the defendant, through its president, the manufacture of material for raincoats, and as a result of these conversations the parties on that date entered into an oral contract by which it was agreed that the defendant should pay to the plaintiff a commission of ten per cent. on all sales of raincoat fabrics made by the defendant anywhere in the United States or Canada, during the period of one year expiring October 31, 1929. Upon the making of the contract the plaintiff entered upon his duties and expended time and money on marketing the new raincoat material. Owing to the fact that experimentation was required before suitable materials were produced several weeks elapsed before samples were available for the trade, and as a result commissions did not accrue to the plaintiff until about February 1, 1929. During the spring of 1929 controversies arose between the plaintiff and the defendant company, acting through its president, over the payment of commissions to the plaintiff on certain orders sold in the Boston territory on which, the defendant contended, the plaintiff was not entitled to a commission. Frequent discussions were had between the parties with reference to the terms of the plaintiff's oral contract with the defendant, and early in June, 1929, the president of the defendant company notified the plaintiff that the board of directors had instructed him to make no further payments to the plaintiff for goods sold in the Boston territory. The plaintiff thereupon replied to the effect that he was surprised that the president should so treat a salesman and permit the board of directors to ignore a contract which their president had made, and that if the president meant to be fair with the plaintiff rather than to attempt to take away part of his territory covered by the contract, he should give him an extension of time under the contract to compensate him for the period lost at the beginning of the term because of time necessarily consumed in perfecting the samples of merchandise, and to compensate him for travelling expenses and automobile expenses; the plaintiff contended that commissions up to then were scarcely enough to cover expenses. The president replied that he felt sure the board of directors would not extend the contract, at least so far as the Boston territory was concerned, but that he would take the matter up with them and see what he could do as to an extension for the rest of the country.

At a conference on June 11, 1929, the president submitted to the plaintiff a contract dated June 11, 1929, informing him that he had taken up the matter with the directors and that the best he could do was to get an extension for the States of New York, New Jersey, Pennsylvania and Maryland. The plaintiff asked for a day or two to consider the proposal and on June 14, 1929, accepted the same. Immediately after the plaintiff had introduced the contract dated June 11, 1929, the defendant moved that all testimony as to conversations leading up to the making of that contract be stricken from the record. The judge denied the motion on the ground that no conversations had been admitted which led up to the making of that contract. At no time was the subject of altering or cancelling the oral contract discussed between the parties. Following the making of the contract dated June 11, 1929, the plaintiff continued as he had prior to June 11 to make frequent demands on the company for the payment of commissions alleged to be due on sales made in the Boston territory, and on or about August 15, 1929, he made a written demand upon the company for payment of said commissions. He continued until October 31, 1929, to sell goods in the New England territory, parts of the middle West, and the States of New York, New Jersey, Pennsylvania, and Maryland.

The contract dated June 11, 1929, is as follows: ‘Windram Manufacturing Co., Cradle Cloth 3 Dorchester Street, South Boston, Mass. Tel. Sough Boston 2600. June 11, 1929. Mr. A. A. McLaren, 755 Boylston Street, Boston, Mass. Dear Sir: We will pay you 10% commission on all orders for Raincoat or Bathing Suit Fabrics sold in New York, New Jersey, Pennsylvania, or Maryland, whether sent in by you or not. A duplicate copy of invoice on all above goods shipped to be mailed to you. This agreement may be terminated on Feb. 1, 1930, by either party, upon sixty days notice, in writing. Commissions will be due and payable as soon as order is received, and credit accepted. Payments of commissions to be made on the 1st and 15th of each month. Any commissions already paid on failures, or uncollectable accounts, to be deducted from subsequent payments. Yours very truly, Windram Manufacturing Company, Ralph W. Lane, President. A. A. George, Treasurer. Accepted by A. A. McLaren, Date, June 14, 1929.’ The defendant offered no evidence in proof of consent to rescission other than the contract dated June 11.

Before the case was submitted to the jury it was agreed between the parties (1) that...