Salzman v. Athletic Tea Co.

• Decision Date: 03 January 1922
• Docket Number: No. 16836.,16836.
• Citation: 236 S.W. 907
• Parties: SALZMAN v. ATHLETIC TEA CO.
• Court: Missouri Court of Appeals

236 S.W. 907

SALZMAN v. ATHLETIC TEA CO.

No. 16836.

St. Louis Court of Appeals. Missouri.

January 3, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by John Salzman against the Athletic Tea Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John V. Lee, of St. Louis, for appellant. Montague Punch, of St. Louis, or respondent.

NIPPER, C.

This action was brought by plaintiff to recover $161.50, alleged by plaintiff to be due him for services rendered in soliciting orders for defendant for tea and coffee, to be sold by defendant to such persons from whom plaintiff would obtain orders, plaintiff to go to such places as defendant would direct, soliciting the orders, and to receive 50 cents for each order so solicited. Plaintiff claimed that he had secured 1,191 orders, for which he had been paid $434, leaving a balance due of $181.50.

The contention of the defendant is that it was to pay plaintiff 50 cents each only for such orders as were accepted by the defendant, and delivery made thereon.

Plaintiff testified that he was to have 50 cents for each bona fide order taken by him and sent in to the house. The question of whether or not these orders were bona fide was subject to rejection by the drivers or delivery men representing the defendant in the different towns or communities where the orders were solicited. Plaintiff would go over these orders with the representative of the defendant who was to make the deliveries, and who resided in the town where the deliveries were to be made, and, if it was decided that certain orders were not from people financially responsible, they would be rejected, and for all those sent to the house, or to the principal place of business of the defendant, which was in St. Louis, Mo., he was to receive the sum of 50 cents, whether the deliveries were made or not.

The evidence on the part of the defendant was that the officers of the company in St. Louis determined and decided whether or not such orders were bona fide; that plaintiff was to he paid only for such orders as were actually delivered. There was direct conflict in the testimony of plaintiff and the witnesses for defendant, on this, the only issue in the case. There is a lot of immaterial and irrelevant testimony in this record which has no bearing whatever upon the issues involved. The question of the credibility of the witnesses was for the jury, and there was sufficient evidence to take the question to the jury as to whether or not plaintiff was to be paid for each order sent in to the house, or whether or not he was to be paid 50 cents each only for such orders as were actually delivered.

At the close of the case the trial judge announced that he would refuse all instructions and give the attorneys 10 minutes on each side to argue the case. No instructions were offered by plaintiff, but the defendant offered several instructions. Instruction No. 3, offered by defendant, was as...