Merriman v. McCormick Harvesting Mach. Co.

• Decision Date: 24 June 1897
• Citation: 96 Wis. 600,71 N.W. 1050
• Parties: MERRIMAN ET AL. v. MCCORMICK HARVESTING MACH. CO.
• Court: Wisconsin Supreme Court

96 Wis. 600

71 N.W. 1050

MERRIMAN ET AL.

v.MCCORMICK HARVESTING MACH. CO.

Supreme Court of Wisconsin.

June 24, 1897.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action by A. D. Merriman and others against the McCormick Harvesting Machine Company. From a judgment in favor of plaintiffs for a part only of the amount claimed, they appeal. Reversed.

This is an action to recover agents' commissions for the sale of harvesting machines, and to recover damages for the failure to perform contracts for the sale of binding twine. The action was tried before a referee. It appeared by the evidence that the plaintiffs were in business at Ft. Atkinson, in the county of Jefferson, and had been the agents of the defendant company for the sale of harvesting machines and binding twine for several years prior to the 5th day of December, 1892, at which time a new agency contract was made for the season of 1893. Said contract was in writing, and provided that the Merriman Bros. become the agents of the respondent for the sale of harvesting machines, twine, and repairs for a certain territory in and about Ft. Atkinson during the season of 1893; that the agents should canvass the territory, obtain orders for the machines, house the machines, and keep them in good order, deliver, and set up and fairly start, every machine sold, and instruct the purchaser how to adjust it for work; also to draw all notes payable to the order of the McCormick Harvesting Machine Company upon its blanks; to sell all machines upon terms prescribed by the company, and settle for machines sold, either by cash or note, at the time of delivery; to furnish the respondent full and detailed accounts of sales; to order all twine, binder trucks, bundle carriers, and repairs which might be needed for the machines from the respondent,--for all of which the respondent agreed to pay its said agents a selling commission of 25 per cent. on all cash received on sales, and 23 per cent. upon all notes taken on sales to good and responsible parties. “Commissions shall only be paid on machines sold and settled for, and none shall be paid on machines returned condemned, or on orders that are not filled.” The contract further provided that the agents agreed “not to retain, on account of commissions or other claims against the said McCormick Harvesting Machine Company, any money, notes, or other property received from sales of machines, twine, binder trucks, bundle carriers, flax dumps, repairs, or any other property, or collections on notes or accounts, but to promptly remit all moneys, notes, or other property to said company, or their authorized general agent, leaving the commissions and any other claims to be determined and paid at settlement. * * * It is further mutually agreed that said McCormick Harvesting Machine Company shall at all times have exclusive and entire control over orders, contracts, notes, moneys, and assets or other property accruing and growing out of the sale of said machines, twine, binder trucks, bundle carriers, flax dumps, repairs, or other property, whether for this or previous years, and may at any time annul and determine this and all other prior contracts, and take possession of all orders, notes, accounts, moneys, machines, twine, binder trucks, bundle carriers, flax dumps, repairs, and other property in the hands of said Merriman Brothers & Company, by virtue hereof.” Early in March, 1893, the plaintiffs began to canvass and take orders for the delivery of binders and mowers, and up to the 22d day of March had obtained 29 orders in writing. Upon the 22d day of March the general agent of the company annulled and determined the contract, and gave written notice of such annulment to the plaintiffs. At the time said contract was annulled none of the machines had been delivered to any of the purchasers, except one machine upon order No. 14, which had been delivered to the purchaser, and, after the cancellation of the contract, the company received the note of the said purchaser in the sum of $135 therefor. Prior to the cancellation of the contract, the defendant had shipped to the plaintiffs, and the plaintiffs had received and stored, at London, Dane county, 9 harvesters and 12 mowers, upon which the plaintiffs had advanced freight amounting to $48.18, which by one of the provisions of the written agreement of agency the defendant was to pay. At the time when the contract was canceled, there was a personal interview between the plaintiffs and the general agent of the defendant, and said general agent demanded that the plaintiffs deliver up the 29 orders for machines. The plaintiffs, however, refused to deliver the same, and claimed them as their own. The plaintiffs also refused to deliver the machines and other property of the defendant then in their possession, and on the same day the defendant took possession of all of its machines and other property, whether at Ft. Atkinson or at London. The plaintiffs never delivered, set up, or started any of the machines mentioned in the orders, nor instructed the purchasers how to work the same. At the time of the cancellation of the contract, the general agent of the defendant offered to settle with plaintiffs for what they had done in pursuance of the contract, but the agents refused to settle. The defendant sent out new agents, and did in fact deliver machines to a large number of the persons who had given their orders for machines to the plaintiffs, but just how many of such orders were so filled does not appear. The plaintiffs within a few days secured the agency of another reaper, and made some efforts to furnish other machines...