Sams v. Arthur
| Decision Date | 19 May 1926 |
| Docket Number | 11989. |
| Parties | SAMS v. ARTHUR et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Union County; C.J. Ramage Special Judge.
Action by M. R. Sams against W. D. Arthur and the Gulf Refining Company. Judgment for plaintiff, and defendant last named appeals. Reversed and remanded, with directions.
The contract fixing the relation between the two defendants and directed to be reported is as follows:
Exhibit 1.
This memorandum of agreement, made and entered into this 11th day of October, 1913, by and between the Gulf Refining Company Atlanta, Ga., party of the first part, and W. D. Arthur, of Union, S. C., party of the second part, witnesseth:
The party of the second part agrees to rent a warehouse at Union, S. C., suitable for the storage of oils, at $8.33 dollars per month, rental of said warehouse to be paid by the said party of the first part.
Party of the first part agrees to ship to party of the second part lubricating oils, illuminating oils, and gasoline, in carload lots, which shipments are to be received by the party of the second part, and sold by him at prices named by the party of the first part-all sales of such oils to be for cash, or, if on credit, only to such parties as are acceptable to party of the first part and upon terms authorized by them.
Where first party orders second party to sell on credit, second party shall deliver a signed receipt, or, in case the oil is shipped out of the city of Union, S. C., second party will deliver an original bill of lading from the railroad company, which shall constitute a receipt.
Party of the second part is to be responsible to the party of the first part for all goods shipped to him, and is to account for all sales in accordance with above paragraph, sending weekly a statement showing all moneys received by him from sale of above-named goods.
Second party shall render to party of the first part statement on the first day of each month, showing in detail the goods on hand.
Second party agrees to pay all drayage and delivery charges, and collect all empty drums and barrels, and ship same back to first party as ordered.
It is strictly understood that all goods shipped party of the second part by party of the first part are the property of the party of the first part until sold.
On or about the first of each month, party of the first part will send to party of the second part a statement showing the sales made by party of the second part during the preceding month, remitting party of the second part commission earned on such sales, said commission to be 1 1/2 cents per gallon on kerosene and gasoline when sold in milk cans or tank wagons, and 1 1/2 cents per gallon when sold in original package such as drums, barrels, cans, or cases, and 10 per cent. of invoice price on lubricating oils, where oil is delivered by party of the second part without payment of railroad freight charges. Where shipments are made by railroad, commission to party of the second part is to be 1 1/2 cents per gallon on kerosene and gasoline and 10 per cent. of the invoice on lubricating oils, and party of the first party is to allow party of the second part amount of freight paid on such shipments.
Party of the first part reserves the privilege of making shipments from its stock of goods in hands of second party, and second party agrees to fill such orders as may be sent them by party of the first part-no commission to be allowed party of the second part on such shipments, but first party will pay second party 25 cents per barrel for drayage and clerical work in making such shipments.
This contract may be terminated by either party upon ten days' written notice to the other party, and upon such termination each party shall settle with the other in full any and all amounts which may be due by either party to the other.
This contract is signed in triplicate, and is effective only when approved by the general sales manager of first party.
Two cents per gallon commission allowed on both kerosene and gasoline on wagon deliveries to points outside of a radius of two miles of the center of Union, S. C.
Effective April 1, 1920, the rate of commission has been increased to 2 cents per gallon on both city and country deliveries of kerosene and gasoline. Authority-Mr. W. V. Hartman's letter March 20, 1920.
Sawyer & Kennedy, of Union, for appellant.
Young & Long, of Union, for respondent.
This is an action by the plaintiff against the defendants W. D. Arthur and Gulf Refining Company for damages on account of a collision between an oil truck and a milk wagon, in which the wagon and horse were injured. The truck belonged to the defendant Arthur, and the Gulf Refining Company was sought to be held liable along with Arthur, upon the ground that Arthur was acting as the agent of the company at the time of the collision. The trial resulted in a verdict in favor of the plaintiff against both of the defendants for $300, and from the judgment entered upon the verdict the defendant Gulf Refining Company alone has appealed. The appeal will be considered only upon the question of alleged error in refusing a motion by the defendant appellant for a directed verdict upon the ground discussed in what follows:
The relation between the Gulf Refining Company and W. D. Arthur was fixed by the written contract between them which was in evidence, the duty of construction of which was upon the presiding judge. From the terms of that contract, which will be incorporated in the report of the case, it appears beyond controversy that the relation was that of principal and factor, the latter of which is thus defined in 25 C.J. 340:
"A factor is an agent who, in pursuance of his usual trade or business, and for a compensation commonly called factorage or commission, sells goods or merchandise consigned or intrusted to his possession for that purpose by or for the owner."
It appears from the evidence that the business of Arthur was handled by him according to his own methods except as modified by the contract. The truck belonged to him,...
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