Meyer-Bridges Co. v. Badeau

• Decision Date: 04 March 1907
• Docket Number: 12,235
• Court: Mississippi Supreme Court
• Parties: MEYER-BRIDGES COMPANY v. GEORGE T. BADEAU

43 So. 609

90 Miss. 27

MEYER-BRIDGES COMPANY v. GEORGE T. BADEAU

No. 12,235

Supreme Court of Mississippi

March 4, 1907

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

Badeau the appellee, was plaintiff in the court below; the Meyer-Bridges Company, the appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court.

Plaintiff sued for $ 119.92 for commissions on sales made by him as defendants' salesman. Appellant's evidence is that it would owe appellee $ 118.65, if it were not for losses on sales made by appellee to parties who did not pay their accounts, but became bankrupt or died insolvent. The appellant made cross-demand in the suit for these losses which exceeded appellee's demand. The evidence was that appellee and Meyer- Bridges Co., a partnership, entered into a written contract for the year 1903 as follows:

"The following. agreement, entered into by Meyer-Bridges Co. Louisville, Ky., and G. T. Badeau, Hammond, La.: As compensation for such services we are to allow him hotel and traveling expenses, which are not to exceed $ 1,200 per annum, and 50 per cent. of the gross profits made on his sales accepted by us, after deducting the $ 1,200 for expenses above referred to. He guaranties the gross profits for the year to amount to $ 4,800. It is also understood and agreed that said G. T. Badeau is to pay 50 per cent. of the losses made by him during the existence of this contract. In addition to the above he is to receive 5 per cent. commission on all brooms, brushes, and mops sold by him for and billed by the Louisville Broom Works. Said compensation to be computed after all freights are deducted. It is understood and agreed that he is to travel such territory as we may designate.

"MEYER- BRIDGES CO."

"Accepted G. T. BADEAU."

It was shown that appellee continued to act as salesman to March, 1905, and that in 1904 one of the partners died; and the corporation, the Meyer-Bridges Company, was organized and continued the business, taking over the assets and assuming the liabilities, of the partnership. Appellant showed that some of the accounts sold by appellee were not paid, but were losses, on account of bankruptcy and insolvency of debtors. Some of these losses were ascertained before the organization of the corporation. Appellee's evidence is that for the year 1904 and the subsequent years there was a verbal contract which made no provision for a division of losses; otherwise, it was practically the same as the written contract for 1903, with a change in commissions for broom sales. The testimony for appellant is that the verbal contracts for 1904 and 1905 were the same as the written contract for 1903, except that the commissions for broom sales were changed; that the written contract, as changed in the matter of broom sales, was verbally adopted for 1904 and 1905.

On the trial in the circuit court the plaintiff's motion to exclude the evidence on the cross- demand of defendant and for a peremptory instruction for the jury to find for the plaintiff the sum of $ 118.65 was by the court sustained, and peremptory instruction given for the appellee directing a verdict for plaintiff for $ 118.65.

Judgment reversed and cause remanded.

Quin & Williams, and F. H. Lotterhoss, for appellant.

The chief question in this case is whether the stipulation by Badeau as to the losses on customers, with whom he dealt for the appellant, is within the statute of frauds. In other words, should the evidence of losses have been excluded, and the jury instructed peremptorily to find for the appellee? In the solution of this question, we submit, that if Mr. Badeau agreed, for the years 1904 and 1905, to share the losses on sales made by him, such promise was not within the statute of frauds, and was provable by a verbal agreement.

The written contract for 1903, is to the effect, that appellee should be paid fifty per centum of the gross profits, after deducting traveling expenses, and should pay fifty per centum of losses on sales made by him. The appellee testified that for the year 1904, there was a verbal contract, by which he was to receive fifty per centum of gross profits, after deducting traveling expenses, and that this did not include a provision for losses; in fact, that the question...