Piedmont Mt. Airy Guano Co v. Buchanan

• Decision Date: 25 February 1926
• Citation: Piedmont Mt. Airy Guano Co v. Buchanan, 131 S.E. 793 (1926)
• Parties: PIEDMONT MT. AIRY GUANO CO. v. BUCHANAN.
• Court: Virginia Supreme Court

131 S.E. 793

PIEDMONT MT. AIRY GUANO CO.

v.BUCHANAN.

Special Court of Appeals of Virginia.

Feb. 25, 1926.

Error to Circuit Court, Northampton County.

Action by the Piedmont Mt. Airy Guano Company against F. F. Buchanan. Judgment for defendant, and the plaintiff brings error. Affirmed.

Louis S. Sacks, of Cape Charles, for plaintiff in error.

T. H. Nottingham, of Eastville, S. James Turlington, of Accomac, and James E. Heath, of Norfolk, for defendant in error.

CHINN, J. In January, 1922, the plaintiff in error, Piedmont Mt. Airy Guano Company, a manufacturer of commercial fertilizers, with its principal office in Baltimore, Md., through its general agent, G. H. Bundick, entered into a contract with F. F. Buchanan, the defendant in error, a resident of Northampton county, Va., appointing said Buchanan its agent for the sale of said company's fertilizers on commission. The contract, which was in writing and was duly signed by Buchanan, and by Bundick in behalf of the company, contains various terms and conditions, including specified prices for the several brands of fertilizers manufactured by the company, among them being "Gold Rod" at $40 per ton, less 7 per cent. discount; settlement to be made in cash or by note not later than July 15, 1922. The contract concludes with the following paragraph:

"All oral representations and agreements are merged herein and this contract shall not be in force nor be subsequently modified until approved in writing at the office of the company."

Buchanan subsequently ordered through Bundick 90 tons of "Gold Rod" brand for divers parties, which was duly shipped by the company, and Buchanan billed for the goods at $40 per ton, amounting to a total of $3,600. On August 24, 1922, Buchanan sent the company a check for $2,444.30, accompanied by a statement claiming credit for the 7 per cent. discount provided by the terms of the written contract, and also claiming that, under the terms of a parol agreement entered into between H. C. Bundick, the company's general agent, and himself, after the written contract was executed, he was entitled to a rebate of $1 per ton on the 90 tons of fertilizer for which he was charged, and a like rebate or commission on 75 tons shipped by the company to one W. J. Leatherbury and on 745 tons shipped to one H. P. James, Jr. The fertilizer company admitted that Buchanan was entitled to a credit of 7 per cent. on the $2,444.30 which he had paid on the account, but refused to allow the discount on the balance due on the account and the $1 per ton rebate which Buchanan claimed.

Some effort to settle the dispute was made by the parties, which having failed, the Piedmont Mt. Airy Guano Company brought this action against Buchanan to recover the amount in controversy; same being $984.60, with interest thereon from August 15, 1922. Upon the trial of the case in the court below the jury allowed Buchanan's claim and found a verdict in his favor, upon which judgment was entered accordingly, whereupon Piedmont Mt. Airy Guano Company applied for and obtained a writ of error to said judgment, which brings it before this court for review.

The first assignment of error relates to the refusal of the trial court to set aside the verdict of the jury as contrary to the law and the evidence, and it is argued in support of this assignment that there is no evidence to show that the defendant in error is entitled to a rebate or commission of $1 per ton on the fertilizer sold Leatherbury and James. It was testified by the defendant in error that, some time after the written contract was executed, Bundick proposed to him that "in order to sell fertilizer and get it established in the community, if I would waive the 7 per cent. discount he would allow me $1 per ton on all goods that he and I sold while we were together"; that in accordance with this proposition he agreed to waive the 7 per cent. discount which was to be his commission, and gave the farmers to whom he sold fertilizers the benefit of it, charging them only $37.20 per ton for "Gold Rod, " which was the selling price fixed by the written contract less the 7 per cent. discount. His testimony on this subject is corroborated by several farmer witnesses to whom Bundick and defendant, acting together, sold or attempted to sell fertilizer, and also by P. D. Martin, a railroad station agent, who testified that, in the early spring of 1922, he heard a conversation in his office between Bundick and the defendant as to the sale of fertilizers and the commission defendant was to receive, and said parties "agreed that Mr. Buchanan was to receive $1 per ton for all goods sold in his territory." There was also evidence going to show that defendant took Bundick around the country and to divers prominent points in the county in his automobile, for the purpose of interviewing prospective buyers and selling plaintiff's goods, and, with that object in view, he brought about the meetings between Bundick and Leatherbury, and Bundick and James, respectively, which resulted in the sales made to those buyers by or through Bundick, and was therefore the procuring cause in those transactions. Bundick admitted in his testimony that Buchanan took him around to quite a number of places in the county, for the purpose of selling fertilizers, and that on all the goods Bundick sold himself he was to receive $1 a ton and 7 per cent. as commissions, but denied that he had agreed to allow defendant $1 per ton on any other sales.

His evidence on this point was summed up in the following statements:

"I sold to Mr. James out and out and to Mr. Leatherbury out and out. The goods were shipped and they got it out themselves."

"I recognized him [meaning Buchanan] as my agent in helping me out on small lots, but, if any man wanted a carload, I sold him myself."

The evidence thus being in conflict, the question of whether or not there was a parol agreement between Bundick and Buchanan to the effect that Buchanan was to receive $1 per ton on all fertilizer sold in his territory, or while they were together, and of whether or not the sales to Leatherbury and James came within the terms of that agreement, if found to exist, were questions exclusively for the jury to decide under all the facts and circumstances of the case. Smythe Bros, et al. v. Beresford, 104 S. E. 371, 128 Va. 137. The jury having found in favor of the defendant upon these issues, and there being sufficient evidence in the record to support those findings, the trial court was plainly right in refusing to set aside their verdict upon the ground assigned, as above stated.

It is further contended that, under the provisions of the last paragraph of the written contract, Bundick was without authority to make a parol agreement with Buchanan altering or modifying the terms of said contract with respect to the latter's commissions or compensation, without the approval in writing of the plaintiff company.

Considering the record before us, this question does not seem to be material, for even if it be conceded that Bundick was without authority to change the written contract, to the extent of making a new agreement in regard to Buchanan's compensation without first obtaining his company's approval, it clearly appears from the evidence in the case that the plaintiff subsequently ratified Bun-dick's act in so doing by the following letter:

"Baltimore, Md., January 17, 1923.

"Mr. F. F. Buchanan, Machipongo, Va.

"Dear Sir:

"Yours of the 12th received inclosing letter of the same date signed by R. L. Ailworth of Eastville, both of which have been read very carefully, but these letters do not in any way clarify the situation. The point in dispute seems to be whether or not Bundick made an agreement with you to the effect that you would receive your commission on the sales that James and Leatherbury made. You stated when last in this office that in the presence of Mr. Ailworth while Mr. Bundick was talking to Mr. James, that you asked Bundick point-blank regarding your commissions in this business and that...