Mears v. Smith
| Decision Date | 17 June 1908 |
| Citation | 85 N.E. 165,199 Mass. 319 |
| Parties | MEARS v. SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Whipple, Sears & Ogden and Alexander Lincoln, for plaintiff.
Powers & Hall, for defendant.
This is an action of contract to recover commissions on renewal insurance premiums under an oral agreement alleged to have been made between the plaintiff and defendant in October 1897. The premiums on which it is sought to recover commissions were paid between March 1, 1902, and January 15, 1903. At the close of the plaintiff's evidence the court, on the defendant's motion, ordered a verdict for the defendant, and the case is here on exceptions by the plaintiff to the ruling thus made. The plaintiff also excepted to the exclusion of certain evidence but those exceptions have not been argued, and we, therefore, treat them as waived.
There was evidence tending to show that the defendant had been for many years a general agent of the Northwestern Mutual Life Insurance Company in Boston, and that in the spring of 1896 the plaintiff became a special agent of that company under the defendant pursuant to a written contract entered into between them bearing date May 1, 1896, and expiring August 1 1897. This contract was substantially the same as the renewal contract subsequently entered into between the plaintiff and defendant dated October 6, 1897, in connection with which the alleged oral agreement was made. The plaintiff testified in substance that in connection with the signing of the contract of May 1, 1896, the defendant orally agreed that if the plaintiff should leave the company at any time he would pay him commissions for two years thereafter on all renewal premiums paid on policies written by the plaintiff for the company provided the defendant remained with the company. The plaintiff also testified that in the year 1897 negotiations took place between himself and the defendant in regard to the signing of a renewal contract and that the defendant at first refused to renew the oral agreement in regard to commissions on renewal premiums, but that finally the defendant said, in substance, that if the plaintiff would sign the contract he would allow him the commission for two years in case he should leave the company at any time; that the plaintiff asked the defendant to put that into the contract but that the defendant said that he could not do that as the company would not indorse the contract, but that he would agree orally to pay the commissions so long as he remained with the company, and that, shortly after this conversation, the renewal contract was executed by the plaintiff and defendant. The plaintiff continued under this contract until March, 1902, when he severed his connection with the company. The plaintiff further testified that he kept an account of the policies which he wrote, and that his claim was made up from the account thus kept. There was no other evidence in regard to the amount of renewal premiums received by the company on policies written by the defendant. The exceptions recite that at the argument on the motion that a verdict be directed for the defendant 'no claim was made on this point' but it is immaterial whether there was or not so far as the right of the defendant to take advantage of it now is concerned. No objection was made to the introduction of the testimony in regard to the oral agreement.
We are of opinion that the ruling was right. The written agreement provides in detail what commissions on renewal and other premiums shall be paid, and where, and also provides for the payment in certain contingencies of commissions on renewal premiums for two years after the plaintiff shall have ceased to act as agent for the company. The oral agreement provided in effect, that if the plaintiff should leave the company at any time and under...
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