Mullins El Al v. Mingo Lime & Lumber Co

• Decision Date: 05 September 1940
• Court: Virginia Supreme Court
• Parties: MULLINS el al. v. MINGO LIME & LUMBER CO.

10 S.E.2d. 492

MULLINS el al.

v.MINGO LIME & LUMBER CO.

Supreme Court of Appeals of Virginia.

Sept. 5, 1940.

Error to Circuit Court, Buchanan County; Alfred A. Skeen, Judge.

Actions for commissions by Judge Mul-lins and S. J. Mullins, partners, etc., against the Mingo Lime & Lumber Company. To review a judgment entered on a verdict of the jury in favor of the defendant, the plaintiffs bring error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

S. H. & Geo. C. Sutherland, of Clint-wood, for plaintiffs in error.

H. Claude Pobst and Marjorie Coleman, both of Grundy, for defendant in error.

GREGORY, Justice.

The plaintiffs below, who are now the appellants, filed their notice of motion alleging that they, as agents for the defendant, a West Virginia corporation, had procured certain sales of building materials on which they were entitled to commissions. The defendant denied any such indebtedness. From a judgment entered on the verdict of the jury in favor of the defendant the present writ of error was granted.

In 1935 the defendant, with its principal place of business at Williamson, West Virginia, established a branch office at Grundy, Virginia, and placed one Wade Crawford in charge. His duties were to sell building materials, make collections, and attend to the running of the Grundy office. Subsequently the company, through its general manager, C. W. Hays, employed one Fred Shortt, whose sole duties were to sell the products of the companyand make collections therefor. All bills and invoices were sent out from the Williamson office until July, 1938, when complete bookkeeping facilities were set up at Grundy.

In 1936 and 1937 the plaintiffs bought various materials from the defendant company, and made partial payments on these purchases. Plaintiffs owned and operated a general store, and engaged in several side-lines, such as the sale, on commission, of realty and used automobiles. They testified that Crawford and Shortt requested them to secure purchasers for building materials to be furnished by the defendant company. Plaintiffs indicated that they could secure customers which the defendant company would otherwise be unable to obtain. It is not claimed that any fixed compensation for these services was agreed upon, but plaintiffs testified that Crawford and Shortt said they would "do them right." Subsequently defendant made several sales which plaintiffs assert resulted from their labors, and for which they demand compensation in the form of commissions.

Crawford and Shortt emphatically deny that any contract was made by which plaintiffs were to receive compensation for securing purchasers' for defendant's products. Shortt testified that the first he had heard of.any such commissions was upon his request to S. J. Mullins, one of the plaintiffs, to pay an instalment due on a note payable to the defendant. Crawford testified that he knew nothing of any claim to commissions until Shortt reported to him the result of his effort to collect the instalment on the note.

This note was one given in March, 1938, for materials used by plaintiffs in the erection of a new building. Crawford and Shortt had refused to extend this credit to plaintiffs without the approval of Mr. Hays, general manager of the defendant company, and Mr. Hays had approved the sale and accepted the note only after plaintiffs agreed first to settle all existing indebtedness to the defendant.

Mr. Hays testified that he had no knowledge of any agreement for compensation, and that when the note was executed by plaintiffs, and was secured by a deed of trust on S. J. Mullins' house, no mention was made of any sum due the plaintiffs on account of the sales allegedly procured by them, although all of the sales for which plaintiffs claim compensation had occurred well before the execution of the note. He further testified that Crawford and Shortt had been given no authority to make such a contract as plaintiffs claim subsisted.

A great deal was made at the trial, and also in this court, of an agent's actual and apparent authority. Much was said of estoppel, retention of benefits, and other agency problems. We are of opinion, however, that a discussion of these subjects is not necessary to a correct decision of the case. The pivotal question is whether any enforceable contract was made between the plaintiffs and the agents of the defendant. A negative answer to this question completely disposes of the case.

A contract is based upon the representations inter se of the two contracting parties, and once the nature and extent of these representations has been determined, the question of whether or not a contract was formed is a question of law, and is not within the province of the jury. But where doubt exists as to the character, or, indeed, the presence or lack of representations, the determination of the precise nature and extent of the representations is a question for the jury. And if there is credible evidence before the jury that the alleged promisor made no such representations as claimed, it is within their province to conclude that no contract was ever formed.

One of the instructions to the.jury in the instant case was as follows: "The Court instructs the jury that, if you believe from the evidence that Wade Crawford nor Fred Shortt, the agents of the defendant company with whom plaintiffs claim the contract sued on was made, were not authorized by said company to make said contract, then the presumption is that said agents did not make the contract as claimed by the...