Martins v. Bauer

• Decision Date: 17 November 1925
• Citation: 188 Wis. 188,205 N.W. 907
• Parties: MARTINS ET AL. v. BAUER ET AL.
• Court: Wisconsin Supreme Court

188 Wis. 188

205 N.W. 907

MARTINS ET AL.

v.BAUER ET AL.

Supreme Court of Wisconsin.

Nov. 17, 1925.

Appeal from Circuit Court, Milwaukee County; Gustav G. Gehrz, Judge.

Action by George R. Martins and another, copartners doing business as Myers-Martins, against Louis E. Bauer and Harlen C. West, receivers of the Elwood Myers Company. Judgment for plaintiffs in civil court modified and affirmed by circuit court, and defendants appeal. Judgment reversed, and cause remanded to circuit court, with directions for new trial.

The action was brought in the civil court. The complaint alleges that the plaintiffs are copartners, and are engaged as sales agents in selling novelties, advertising goods and cans; that the defendant is a foreign corporation, and is engaged in manufacturing novelties, advertising goods and cans; that in the month of July, 1922, the parties entered into a contract, by which the defendant employed the plaintiffs as such sales agents to procure orders, from purchasers, of cans, for which services the defendant agreed to pay to the plaintiffs a commission of 5 per cent. of the total contract price of such orders; that pursuant to such employment, the plaintiffs procured an order from the Midwestern Soap Products Company, of Milwaukee, for 1,000,000 cans, aggregating the sum of $20,000, which order was accepted by the defendant; that, on the procuring and acceptance of such order, the defendantbecame indebted to the plaintiffs in the sum of $1,000. In its answer, the defendant admits the copartnership and business of the plaintiffs, but denies the procuring of the order by the plaintiffs, and it also denies the alleged employment of plaintiffs to secure orders for cans.

The evidence discloses that some time in the month of February, 1922, Myers, one of the plaintiffs, was engaged by the defendant as a sales agent to procure orders for the sale of novelties and signs manufactured by the defendant, under a contract which provided for the payment of commissions varying from 15 per cent. to 25 per cent., the payment of which commissions depended largely upon the actual execution of the orders and the collection on the part of the defendant of the amounts becoming due. It seems that, in the spring or summer of 1922, the plaintiffs formed a copartnership as sales agents to procure orders for novelties, signs, and cans, and that, pursuant to correspondence which ensued with the defendant, the plaintiffs were employed by the defendant as such sales agents to procure orders or contracts for cans manufactured by the defendant. While such employment was disputed by the defendant, the evidence as contained in the elaborate correspondence between the parties is quite persuasive that such employment did actually occur. Both of the plaintiffs testified that they procured the order above referred to with the Midwestern Soap Products Company, and that the manager of the defendant agreed to pay them by way of commissions, 5 per cent. of the aggregate amount of the order so procured. Defendant's manager denied such employment, and claimed that the only contract ever entered into was the one which had reference to novelties and signs, which was entered into with Myers individually; that, however, he intimated that for actual services performed, the defendant would make compensation at its option, in accordance with what it deemed fair and reasonable under the circumstances. Defendant also took the position that the orders for cans were to be compensated for, if at all, upon the same basis as was provided for by the contract of Myers with the defendant in procuring orders for novelties and signs; the amount of such compensation depending upon the execution of the orders and the collection of the amounts becoming due.

While the negotiations were being carried on between the plaintiffs and the defendant, with respect to the employment of the plaintiffs for procuring orders for cans, the defendant, on July 28, 1922, wrote a letter, addressed to Martins, one of the plaintiffs, which, in part, reads as follows:

“We desire to call your attention to one fact before you go further into this matter and that is that the commission on cans is comparatively small compared with your selling commission on other items in our line, due to the fact that can business is taken on very close margin and it is physically impossible for us to pay a commission in any instance exceeding 5 per cent. To offset this in a way, you sometimes are able to secure can contracts which run over lengthy periods, and the final commission to you is sometimes better than is received from selling other lines which do not carry the contract feature.

At any rate we want to assure you that we are not displeased in any way in having you go into the can end of it and, if you are able to close some business in your city, it will be very gratifying to us. Of course it may be necessary to restrict some prospects just at this time for the reason that our representative has gotten started.

If you will kindly let us hear from you, we will be glad to furnish you with any information you desire or be of help in every way possible.

Again thanking you for your nice letter, and wishing you continued success, we are,

Very truly yours.”

It is conceded that the only evidence of reasonable value for services rendered is that contained in the letter from which the above quotation is taken. Plaintiffs take the position that, from the portion of the letter above quoted, an inference can and must be drawn to the effect that the defendant considered 5 per cent. a reasonable commission. This is disputed by the defendant.

The case having been tried before the court without a jury, the trial court at the conclusion of the evidence made and filed certain findings of fact and conclusion of law, the material parts whereof are the following:

“(4) That in the latter part of the month of July, 1922, the defendant company employed the plaintiffs as sales agents and representatives to procure purchasers or buyers for certain cans or containers which were made or manufactured by said defendant company; that no specific agreement was entered into by and between said parties at that time as to the amount of commission which said plaintiffs were to receive upon orders for cans obtained by them.

(5) That subsequently said plaintiffs procured for said defendant an order from the Mid-Western Soap Products Company for one million cans at an aggregate price of twenty thousand dollars, according to the terms of written contract subsequently entered into by and between said defendant and said Mid-Western Soap Products Company; that said contract was duly accepted by the above-named defendant company; and that pursuant to said contract said defendant delivered to said Mid-Western Soap Products Company cans of a value of fifteen hundred dollars and that thereafter said contract was abandoned by the parties thereto.

(6) That five (5%) per cent. commission is a reasonable compensation for said plaintiffs for their services in so procuring and aiding in procuring said contract.

Conclusion of Law.

(1) That said plaintiffs are...