McPike v. Kardell Motorcar Co.

• Decision Date: 01 July 1919
• Docket Number: No. 15426.,15426.
• Citation: 213 S.W. 904
• Parties: McPIKE v. KARDELL MOTORCAR CO.
• Court: Missouri Court of Appeals

213 S.W. 904

McPIKE v. KARDELL MOTORCAR CO.

No. 15426.

St. Louis Court of Appeals. Missouri.

July 1, 1919.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by Alexander P. McPike against the Kardell Motorcar Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Koerner, Fahey & Young and Robert J. Kratky, all of St. Louis, for appellant.

Rodgers & Koerner, of St. Louis, for respondent.

ALLEN, J.

The amended petition herein alleges that on December 21, 1909, plaintiff entered into a contract with Kardell Bros., of St. Louis, Mo., dealers in automobiles whereby it was agreed that from said date until September 1, 1910, plaintiff would act as agent for said Kardell Bros. for the sale of "Reo" and "Fal" automobiles in Pike, Montgomery, and Lincoln counties and a part of Rails county, in the state of Missouri, it being agreed that plaintiff would solicit orders for automobiles, forward the same to Kardell Bros., who would fill such orders; that plaintiff would receive as compensation for his services a commission of 15 per cent. on the list price of certain models of Reo automobiles and on all Fal automobiles sold by him, and receive the same commission on all automobiles which said Kardell Bros. might sell in the above-mentioned territory; that under the terms of the contract plaintiff was required to deposit with Kardell Bros. $500 in cash, it being agreed that out of said deposit 25 per cent. would be returned to him upon the delivery of each automobile sold by him, the balance, if any, of such deposit to be returned to him upon the termination of the contract. A copy' of this contract is attached to the petition and marked "Exhibit A."

The petition further alleges that, pursuant to said contract, plaintiff deposited with Kardell Bros. $500 in cash, and as agent for said Kardell Bros. solicited and endeavored to obtain orders for their automobiles; that he advertised said automobiles in the territory mentioned, demonstrated them to prospective purchasers, and did all in his power to make sales thereof, and obtained certain orders for automobiles which were duly filled by Kardell Bros.; "that from and after the expiration of said contract, according to its terms, and until the 12th day of May, 1913, he continued to act as agent under the same terms and conditions as those set forth in said contract, first for said Kardell Bros. and afterwards for defendant, their successor"; that on or about March 7, 1911, the defendant corporation, namely, the Kardell Motorcar Company, was incorporated, and became and has at all times since continued to be the successor of said Kardell Bros. under said contract, and has assumed and become liable for all of the latter's obligations thereunder; that the defendant corporation received from Kardell Bros. the deposit of $500 made by plaintiff as aforesaid, or so much thereof as remained in the hands of said Kardell Bros. at the time of the incorporation of the defendant company; that on or about July 1, 1911, it was agreed between plaintiff and the defendant corporation that commissions on all automobiles thereafter sold by him as defendant's agent, or by defendant in his territory, would be increased from 15 per cent. to 20 per cent. of the list price of such automobiles; and "that plaintiff's territory should be reduced so as to include only Pike county, Mo., and those prospective sales upon which plaintiff was then working in Lincoln and Montgomery counties, Mo."; that from the time of the said modification of the terms of the contract until May 12, 1913, plaintiff acted as defendant's agent in the sale of its automobiles, under the terms and conditions of the said contract as thus modified.

The petition further alleges that during the whole period above mentioned, i. e., from December 21, 1909, to May 12, 1913, said Kardell Bros. and the defendant together returned to plaintiff $294.50 out of said deposit of $500 originally made by plaintiff, leaving a balance of $205.50 of said deposit in defendant's hands that is due and owing to plaintiff.

It is alleged that about August, 1910, Kardell Bros. sold a Reo automobile, of the type specified in said contract, "to a party in Winfield, Mo., within the territory mentioned in said original contract"; and that thereafter, between July 1, 1911, and May 12, 1913, defendant corporation "sold a number of Reo cars, of the type specified in said contract, to persons, some of whom lived in Pike county, Mo., and others of whom lived in Lincoln or Montgomery counties, Mo., and were persons to whom prior to July 1, 1911, plaintiff had been exhibiting, demonstrating, and advertising said cars, and who, on said July 1, 1911, were prospective purchasers of cars from plaintiff, upon whom plaintiff was working."

This is followed by an itemized list of the sales thus alleged to have been made by defendant and its predecessor, upon which plaintiff claims commissions, giving the names and places of residence of the alleged purchasers of the automobiles, the respective list prices thereof, and the commissions claimed by plaintiff on each sale. The list includes the sale alleged to have been made by Kardell Bros. in Winfield, Lincoln county, Mo.; sales of two automobiles alleged to have been made by defendant to unknown parties in Middleton, Montgomery county, in 1912; sales of three automobiles alleged to have been made by defendant in Lincoln county in 1913; and sales of five automobiles alleged to have been made by defendant in Pike county, one in 1912 and three in 1913. As to the sales alleged to have been made in Pine county, with which we are here particularly concerned, plaintiff claims a commission of $231 on one such sale and a commission of $239 on each of the remaining four thereof, making a total of $1,187.

The petition further alleges that defendant is indebted to plaintiff in the sum of $8 for certain automobile parts returned by him to defendant for which he received no credit, and in the further sum of $5 for a "rim" charged to plaintiff which he did not receive. Alleging full performance of the contract on his part, and demand for the various sums alleged to be due him, plaintiff prays judgment for $2,659.50.

The answer is a general denial.

At the trial, before the court and a jury, plaintiff withdrew his claim for commissions on the automobiles alleged to have been sold by defendant to unknown parties at Middleton, and there was no evidence to entitle plaintiff to recover a commission on the car alleged to have been sold by Kardell Bros. at Winfield. The jury returned a verdict for plaintiff in the sum of $2,142.16. In passing upon defendant's motion for a new trial, the court required plaintiff to remit $750 of the verdict; and, this having been done, judgment was entered for plaintiff in the sum of $1,417.16. The judgment upon the verdict thus reduced represents the commissions alleged in the petition to be due plaintiff upon the said sales charged to have been made by defendant in Pike county, together with the amount of the deposit alleged to have remained in the hands of defendant, to wit, $205.50, with interest on the latter from the institution of the action.

The evidence discloses that on December 21, 1909, plaintiff, a resident of Bowling Green, Mo., entered into a written contract with Kardell Bros., dealers in automobiles in the city of St. Louis, whereby Kardell Bros. appointed him as their agent for the sale of their automobiles in Pike, Montgomery, and Lincoln counties, and certain specified portions of Rails county, Mo., from the date of the contract until September 1, 1910, unless the appointment should be otherwise rescinded. Plaintiff thereby agreed to make and did make a deposit of $500 with Kardell Bros., specified to be a deposit on 20 "cars"; the contract providing that $25 of this deposit would be returned to plaintiff upon the sale of each car sold by him under the agency. The contract further provided that Kardell Bros. would pay plaintiff, as full compensation for his services and outlay in the premises, a commission of 15 per cent. on the list price of certain models of the "Reo" automobile and a like per cent. on the list price of all "Fal" automobiles sold by him under the agency in said territory.

The contract contained the following clause:

"The second party (plaintiff) entitled to their regular discount on cars sold by first party in above territory."

A further paragraph of the contract is as follows:

"Said party of the second part agrees to diligently canvass the territory assigned to him under this contract, and to mail to the party of the first part a list of prospective customers within thirty days from date of this contract, and additional prospects from time to time during the life of said contract; and in event of his failure to do so, the said first party reserves the right to terminate this contract at any time, or place its own canvassers in said territory, and on sales made by such canvassers no commission will be allowed said second party."

The contract further provided that, if plaintiff did not sell all the 20 cars, Kardell Bros. would refund the deposit on cars not sold. And written upon the margin of the instrument appeared the following:

"Second party (plaintiff) to have to January 1, 1911, to sell the cars specified in this contract."

The evidence shows that plaintiff at once entered upon the. performance of the contract on his part, opened a place of business, furnished Kardell Bros. with a list of prospective customers, and made efforts to sell automobiles as agent for Kardell Bros. in the territory thus assigned to him. He testified that in 1910 he sold two automobiles under the agency, upon which he received his commission and the said refund from the deposit made by him. It appears that after January 1, 1911, plaintiff continued his efforts, without any new contract or formal extension of...