Portland Body Works v. McCullough Motor Supply Co.

• Decision Date: 03 April 1918
• Docket Number: No. 9555.,9555.
• Citation: 119 N.E. 180,72 Ind.App. 216
• Parties: PORTLAND BODY WORKS v. McCULLOUGH MOTOR SUPPLY CO.
• Court: Indiana Appellate Court

72 Ind.App. 216

119 N.E. 180

PORTLAND BODY WORKS

v.McCULLOUGH MOTOR SUPPLY CO.^*

No. 9555.

Appellate Court of Indiana, Division No. 2.

April 3, 1918.

Appeal from Superior Court, Delaware County; Robt. M. Van Atta, Judge.

Action by the McCullough Motor Supply Company against the Portland Body Works. Judgment for plaintiff, and defendant appeals. Reversed, with instructions to sustain motion for new trial.La Follette & McGriff, of Portland, Leffler, Ball & Needham, of Muncie, and R. H. Hartford, of Portland, for appellant. Hanna & Daily, of Indianapolis, and Warner & Warner, of Muncie, for appellee.

CALDWELL, J.

Appellee brought this action against appellant to recover commissions alleged to be due it on account of services rendered by the former in making sales of automobile bodies manufactured by the latter. The first paragraph of complaint declared on a written contract hereinafter outlined, by which appellee was appointed appellant's sales agent. The second paragraph was predicated on the quantum meruit. Appellant filed to the complaint an answer in general denial, and also to the first paragraph thereof a special answer in four paragraphs, numbered 2, 3, 4, and 5. Appellant filed also a counterclaim in two paragraphs. Appellee's demurrer was sustained to the special answers. Appellee filed also a demurrer to each paragraph of the counterclaim, on which the record discloses no ruling. Appellee closed the issues on the counterclaim by filing a general denial.

On a trial the court by proper request found the facts specially, and stated conclusions of law, on which judgment was rendered in favor of appellee for $1,248.09. Appellant urges that the court erred in sustaining the demurrers filed to its special answers, and in admitting certain testimony, and also that the evidence is insufficient to sustain the finding.

In order that there may be an intelligent comprehension of the questions presented, we outline in part the facts as found by the court, which in the main at least are supported by the evidence, as follows: In 1912 and prior thereto appellant was engaged in the manufacture of bodies for automobiles and other vehicles at Portland, Ind. Appellee conducted at Indianapolis a general sales business and sales agency of parts that enter into the construction of motor vehicles. In conducting such agency it represented a number of manufacturing companies. Its business included the finding of purchasers in quantities, for parts used in the building of motor vehicles. June 30, 1911, the parties entered into a contract in writing, above referred to as being the basis of the first paragraph of complaint, by the terms of which appellant appointed appellee as its agent to sell for it automobile bodies for the season of 1912 ending June 30, 1912. This contract was in part to the effect that appellant agreed to devote its entire time to the manufacture of bodies sold in advance by appellee, provided appellee made sufficient sales to that end, otherwise appellant reserved the right to solicit additional work on its own account. It was stipulated that either party might terminate the contract by 30 days' notice in writing, and that should the contract be terminated appellant would pay to appellee commissions on all contracts procured by appellee, although thereafter filled; that on any bodies manufactured by appellant and sold in advance by appellee, appellant should, prior to the manufacture and sale of such bodies, quote to appellee a price, and that appellee's commission should consist of the excess of the price at which it made sales over the quoted price; that commissions should be due and payable when appellant collected on sales made by appellee; that appellee should not act as agent for any manufacturer other than appellant in the sale of “bodies in white.”

Appellee served as appellant's sales agent under the foregoing contract up to June 30, 1912. Prior to April 4, 1912, the Haynes Automobile Company of Kokomo, at the solicitation of appellee, had submitted to appellant a blueprint, with specifications descriptive of a certain type of automobile body which it desired to purchase, and thereby sought from appellant through appellee a bid or price at which appellant would manufacture and furnish such bodies. Thereafter, at the solicitation of appellee and as required by the Haynes Company, appellant manufactured and shipped to the Haynes Company a sample body conforming to such blueprint and specifications. This sample body was of a type designated by the Haynes Company as model 22. On such body appellant quoted appellee a price of $60 each, and appellee thereupon agreed with the Haynes Company that the bodies should be manufactured and furnished by appellant at $64.85 each. Thereafter appellee as such agent procured from the Haynes Company a form of contract in writing, properly signed by the latter, and in terms as follows:

“April 4, 1912.

Portland Body Works, Portland, Indiana- Gentlemen: You may enter our order for our season's requirements in bodies for the season of 1913. These not to exceed fifteen hundred bodies. Orders to be placed in lots of two hundred fifty or more, and such orders to be placed sixty days in advance of our requirements. This contract is conditioned upon bodies being furnished equally as good or better than the sample submitted, and upon your ability to make deliveries as specified. Failure on your part to satisfy us in this respect shall be sufficient cause for the cancellation of this contract. Terms of settlement two per cent., ten days, net thirty.”

At the same time appellee as such agent procured from the Haynes Company a written order duly signed, in part as follows:

“Ship to the Haynes Automobile Co., Kokomo, Indiana, *** two hundred fifty model 22 touring car bodies same as sample submitted, *** for which we agree to pay the Portland Body Works the sum of $64.85 per body. *** Delivery at least 25 by May 15, 1912; 75 in June, 100 in July, 50 in August.”

Appellee thereupon mailed such contract, and also such order to appellant, who thereupon accepted them in writing. On or about May 23, 1912, the Haynes Company, by and with the consent of appellant and appellee, canceled such order as to 75 bodies. Subsequently the Haynes Company placed with appellant the following additional orders for bodies model 22, and for its requirements for the 1913 season, to wit: July 10, 1912, 100 bodies; August 23, 1912, 100 bodies; October 16, 1912, 20 bodies. Appellant manufactured and shipped to the Haynes Company on such orders 395 bodies, each of which was model 22, and the last shipment having been made November 29, 1912, for which appellant received payment in full at $64.85 each, or a total of $25,615.75. Appellant paid appellee commission on 175 of such bodies at $4.85 each, or a total of $848.75. The court found a balance due appellee of $1,067 and interest, aggregating the amount of the judgment.

The evidence disclosed that in the business of manufacturing automobiles the year or season commences July 1st; that is, the season 1913 commenced July 1, 1912, and ended July 1, 1913. It is appellant's contention that under the contract of April 4, 1912, it was entitled to furnish to the Haynes Company all the bodies that it required for the 1913 season, regardless of style or model; while it is appellee's contention that such contract covered only model 22. Appellant's special answers, as well as its counterclaims, in a general way were to the effect that appellee's agency contract expired by limitation June 30, 1912; that prior thereto it delivered to the Haynes Company 175 model 22 bodies at $64.85 each, on which it paid appellee commissions as agreed; that the 220 bodies model 22, thereafter delivered, were furnished on orders received after appellee's contract had expired, and consequently that appellee was not entitled to commission on such bodies. While it does not clearly appear, it seems to be the theory of these answers and also of the counterclaims that the 220 bodies were not furnished under the contract of April 4, 1912, but pursuant to independent negotiations between appellant and the Haynes Company. The special answers, except paragraph 2, and also the counterclaims, are further to the effect that after July 1, 1912, appellee as sales agent of the Woodstock Carriage Company procured from the Haynes Company a contract by which the former furnished the latter 1,000 bodies for the 1913 season; that appellant was entitled to furnish such bodies under the contract of April 4, 1912; that appellee was thereby guilty of a breach of faith and violated the duty which it owed to appellant, by reason of which, not only was it not entitled to further commissions, but also that appellant was entitled to recover damages.

The further finding of the court bearing on these controverted questions was to the following effect: July 31, 1912, appellant, through negotiations had with the Haynes Company, and without the intermediation of appellee, procured an order to construct certain flat deck roadster bodies of a type different from model 22, under which appellant did furnish and deliver to the Haynes Company a number of such bodies, and on which the court found that appellee was not entitled to commission. (They were...