Morris v. Miller & Smith Mfg. Co.

• Decision Date: 18 October 1961
• Docket Number: No. 6911,6911
• Citation: 365 P.2d 664,1961 NMSC 152,69 N.M. 238
• Parties: A. J. MORRIS, Plaintiff-Appellant, v. MILLER & SMITH MFG. CO., Inc., Defendants-Appellee.
• Court: New Mexico Supreme Court

Page 664

365 P.2d 664

69 N.M. 238

A. J. MORRIS, Plaintiff-Appellant, v. MILLER & SMITH MFG. CO., Inc., Defendants-Appellee.

No. 6911.

Supreme Court of New Mexico.

Oct. 18, 1961.

Nordhaus & Moses, Fred Trechel, Albuquerque, for appellant.

Sutin & Jones, Albuquerque, for appellee.

COMPTON, Chief Justice.

The question presented by this appeal is whether the court erred in granting summary judgment. The pertinent provision of the applicable statute, Sec. 21-1-1(56)(c), 1953 Comp., reads:

'* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

The plaintiff brought this action to recover judgment for certain sales commissions, and filed a demand for jury trial, after which his deposition was taken by the defendant. After plaintiff's deposition was taken, but before it was filed, defendant moved for summary judgment, alleging that there did not exist a genuine issue as to any material fact. At a hearing upon the motion, summary judgment was granted dismissing plaintiff's complaint with prejudice. It is from this judgment that plaintiff appeals, contending (a) that the pleadings and the deposition of plaintiff failed to show that there is no genuine issue as to any material fact; (b) that the defendant is not entitled to judgment of dismissal as a matter of law; and (c) that the court erred in entering its order dismissing plaintiff's complaint with prejudice.

The complaint alleged an oral employment agreement whereby plaintiff's compensation was to be 4% of gross sales made to customers whose accounts were procured by plaintiff; that in accordance therewith plaintiff sold certain steel to Robert E. McKee General Contractor, Inc., between September 1, 1958 and April 4, 1959 for which defendant refused to pay plaintiff a commission of 4% but paid plaintiff for such sales at the rate of only 2%; and that a balance of $8,921.33 is due and owing.

Defendant's answer admitted plaintiff's employment on a commission basis but denied the remaining allegations of the complaint and, alleged payment in full; accord and satisfaction; that defendant, through its President, procured the contract in question and plaintiff agreed to service the contract for a commission of 2%; that plaintiff made out and submitted his own commission reports on the basis of 2% of gross sales on the contract in question and was paid in full; that by reason of the acts and conduct of plaintiff he is estopped to claim a 4% commission; and that if it should be determined that plaintiff was initially entitled to a 4% commission on gross sales to McKee, by his acts and conduct he voluntarily relinquished and waived his right thereto.

We summarize the facts as disclosed by the pleadings and from the deposition upon which summary judgment was granted. In May, 1955, pursuant to an oral agreement, appellant was employed by the appellee at a basic salary of $200 per month with commissions of 4% on gross sales made by appellant, and with a draw to $500 per month against commissions. The basic salary was increased to $250 per month in December, 1955. Appellant was to receive commissions on gross sales made or negotiated by him, or procured through his efforts, but he did not expect commissions on any sales toward which he had not expended sales efforts. In addition to the sale of fabricated steel items, appellant prepared and submitted bids on large construction jobs and received 4% commissions on the gross sales of jobs awarded to appellee as the low bidder. Appellant outlined the procedure followed by him in procuring sales on these large construction jobs for which he received a 4% commission. This procedure consisted of making the initial contact, doing take-offs on plans and specifications, preparing and submitting written bids and quoting the jobs. On this basis, from May, 1955 to September, 1958, appellant dealt with McKee and others, and received his 4% commission on gross sales to them.

In the early part of 1958 some difficulty arose between appellant and the estimators of McKee regarding a particular bid and appellant advised appellee to refuse to bid further on McKee jobs. However, in July or August of that year, Mr. Smith, an officer of appellee, was contacted by McKee directly with regard to obtaining certain fabricated steel for the Ideal Cement Company project because MeKee was unable to get delivery of steel, as fast as it was required, from McKee's original supplier. Thereupon, Smith requested appellant to participate in the discussions on this job, which he did, and the contract in question was consummated with McKee.

The initial contact, however, was not made with appellant, nor did he thereafter do any take-offs, make quotations or prepare and submit written estimates, all of this being done by other personnel of appellee. In other words, appellant did not expend any sales efforts toward the procurement of this contract or follow the usual procedure outlined by him for which he had, on previous occasions, received a 4% commission. Appellant's sole participation in the negotiations for the sales contract with McKee was in the discussions relating thereto and, thereafter, in servicing the contract as liaison man, at appellee's request, for a commission of 2% of gross sales thereunder. To this, appellant states, he was 'forced to reluctantly agree, under protest,' feeling he was entitled to the customary 4% commission as a result of his continued contacts with McKee. However, appellant submitted his monthly commission reports to appellee wherein he figured his commissions on this job, as liaison man, at 2%, and received payment therefor. In April, 1959, appellant severed his connection with appellee and shortly thereafter brought action against appellee for an additional 2% commission on the McKee contract for the Ideal Cement Company project claiming he was entitled to the same under the terms of the oral agreement.

Appellant's contention in the court below and on appeal is that having originally procured the business of McKee...