McMahon v. Bryant Electric Co.

• Decision Date: 14 May 1936
• Citation: 121 Conn. 397,185 A. 181
• Court: Connecticut Supreme Court
• Parties: McMAHON v. BRYANT ELECTRIC CO.

185 A. 181

121 Conn. 397

McMAHON v. BRYANT ELECTRIC CO.

Supreme Court of Errors of Connecticut.

May 14, 1936

Appeal from Superior Court, Fairfield County; Ernest A. Inglis Judge.

Action by Edward J. McMahon against the Bryant Electric Company to recover damages for breach of contract, brought to the superior court in Fairfield County and tried to the jury before Inglis, J. Verdict and judgment for the plaintiff, and appeal by the defendant.

No error.

David S. Day, of Bridgeport, for appellant.

Richard S. Swain, of Bridgeport (Edward J. McCarthy, of Bridgeport, on the brief), for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

HINMAN, Judge.

The complaint alleged that in January, 1934, the plaintiff and the defendant entered into a verbal agreement whereby the plaintiff was to furnish the defendant a sales promotional program divided into twelve monthly plans, the defendant to pay therefor an agreed sum per plan; that the plaintiff performed the contract to and including April, but the defendant then refused to proceed further. The answer was a general denial. On the trial the plaintiff gave evidence that he was engaged and experienced in the business of advertising and sales promotional work specializing in the industrial, and particularly the electrical, field. Commencing in June, 1933, he had numerous conferences with various representatives of the defendant concerning supplying it with a " Sales Activator Plan" to consist of twelve monthly units, each consisting of a cover and several pages of information concerning defendant's products, to be sent to its distributors and their salesmen. Negotiations continued until, shortly after January 1, 1934, an agreement was consummated and performance proceeded with. In the meantime, in October, 1933, the plaintiff had made arrangements with the Wilson H. Lee Advertising Agency, hereinafter called the Agency, a subsidiary of the Wilson H. Lee Company, printers, referred to as the Company, whereby he was to have the use of the facilities of the former and was to give the contracts for all printing of his business to the latter, in anticipation of which the Agency advanced to him $60 per week. The plaintiff told the defendant that he would have the Company do the printing of the units, and at his request it was agreed that the entire monthly cost to the defendant should be billed through the Agency. This practice was followed and payments were made to the Agency to and including April.

By April Mr. Badeau, who had been in charge of defendant's advertising, retired and was succeeded by Mr. Herold, and in May the defendant terminated its contract with the plaintiff. Thereafter for the remainder of 1934 Herold wrote the copy for the monthly units, but they were issued in accordance with the plaintiff's Sales Activator Plan. The price which, under the agreement, the defendant was to pay was $325 per monthly unit; the " out of pocket" expense to the plaintiff for the remainder of the year after April would have been from $75 to $100 per month. On this basis his loss of profit would amount to from $1,800 to $2,000. The jury's verdict was for $1,950 damages.

The purport of the evidence for the defendant was that in October, 1933, the Agency employed the plaintiff as a salesman at a salary of $60 per week; that the defendant understood that the plaintiff was acting for the Agency and that the agreement was being made with it and not with the plaintiff personally; that the defendant would not have contracted with the plaintiff individually; and that the contract was made with the Agency and not with the plaintiff.

It is apparent from a study of the evidence that if the jury could and did accept substantially the testimony of the plaintiff as to his relations and arrangements with the Agency and the history and details of his negotiations with the defendant and the agreement finally arrived at, they reasonably could conclude that the contract was with him personally and not with the Agency. The credibility of the respective witnesses, of course, was for the jury to determine. The officers and employees of the defendant who testified were subject to the same considerations of adverse interest as the plaintiff, and the Lee Company and Agency, the representatives of which testified, had, it appears, made a substitute agreement with the defendant following the termination of the original contract. The chief reliance of the appellant to discredit the plaintiff's testimony is upon the documentary evidence, but we do not find this to be so irreconcilable with the material points of his evidence as to require the jury to reject it. Certain letters to the defendant bear the signature (in typewriting) of the Agency followed by that of the plaintiff, but the suggestion readily occurs that the Agency signature may well have been a customary office routine which, as plaintiff says, he may have followed " without thinking of the legal aspects." Also letters which relate to the plan in question, while dictated by the plaintiff, appear not to have been signed by him personally; the others relate to trade paper advertising or other distinctively Agency business, to which an Agency signature would be appropriate. The payroll card and the entries on pay rolls are not necessarily inconsistent with a weekly drawing account to the plaintiff, such as he claims to have had, instead of a flat salary. As, according to plaintiff's claim as to the arrangement with the defendant and the Agency, the entire contract price was to be billed by the Agency, it is not illogical that it should be so charged on the Company's ledger. The inclusion of the production cost and price of the Activator Plan, and the difference as " profit" in a statement of business produced by the plaintiff, made up by the Agency, is not of controlling significance. The statement was prepared for the purpose of determining if the $60 per week allowance to the plaintiff was justified, and the result was a reduction to $40. It was not inconsistent with the plaintiff's version of his arrangements that comparison of the debits for services and materials furnished by the Company for the units with credits for the total amount received by, it on account of the plan should be taken into account in that connection, or that no bills for the services and materials were rendered to the plaintiff. Under the arrangement as claimed by him, the accounting, billing, and collecting for the plan were entirely in the hands of the Agency and his profit was being absorbed in his weekly withdrawals.

It appears from the defendant's evidence, as well as that of the plaintiff, that the representative of the Agency who made the arrangement with him knew of his experience and connections with advertising in the electrical field and particularly of a plan pertaining to rural electrification upon which he was working which, if realized, would involve large contracts, for printing. This lends color to the plaintiff's claim that the arrangement was for a drawing account against commissions on orders which he might be able to bring to the company rather than employment upon a stated salary covering all benefit from all of his plans and prospects. All in all, we conclude that, whether or not the trial court or this court would have reached a like result, it was open to the jury reasonably to find, upon evidence which they were not precluded from accepting, that the contract was with the plaintiff and that he was entitled to recover damages for its breach by the defendant.

The appellant urges, as a further ground for attack upon the verdict, the failure of the plaintiff to prove, as an element of deduction from the contract price in the computation of profits for the remainder of the term of the contract after the breach, as the measure of damages, the amount which he earned from other employment in the time which he would have had to devote to the performance of the contract. As later it appears from our discussion of the charge, deduction upon this basis was not, adapted to the present action. We find no error in the denial of the motion to set aside the verdict.

The appellant assigns error in that the charge included instructions regarding the effect of the statute of frauds (General Statutes, §§ 5982, 5983) upon the contract alleged and claimed to have been proved by the plaintiff, although the defendant did not raise that as a defense. It appears from the finding that the contract relied upon, if established, might be found to be one not to be performed in one year from date of making, or one for the sale of goods of a value of more than $100, and so within one or both of these sections. The defendant was entitled to take advantage on the statute under its general denial, without specially pleading it. Practice Book 1934, p. 46, § 104. Therefore, the matter was not foreign to the case and the court might well, as it obviously did, regarded it as essential, or at least appropriate. Gross v. Boston, W. &amp N.Y. St. R. Co., 117 Conn. 589, 596, 169 A. 613. The omission to...