San Antonio Machine & Supply Co. v. Allen

• Decision Date: 23 December 1925
• Docket Number: (No. 7461.)
• Citation: 279 S.W. 493
• Parties: SAN ANTONIO MACHINE & SUPPLY CO. v. ALLEN.
• Court: Texas Court of Appeals

279 S.W. 493

SAN ANTONIO MACHINE & SUPPLY CO. v. ALLEN.

(No. 7461.)

Court of Civil Appeals of Texas. San Antonio.

December 23, 1925.

Rehearing Denied January 20, 1926.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Suit by J. W. Allen against the San Antonio Machine & Supply Company. From a judgment for plaintiff, defendant appeals. Affirmed in part, and in part reversed and rendered.

J. C. Scott, of Corpus Christi, and Goeth, Webb & Goeth, of San Antonio, for appellant.

J. D. Todd, S. P. Chandler and H. R. Sutherland, all of Corpus Christi, for appellee.

SMITH, J.

This is the second appeal in this cause. 268 S. W. 532. The suit was brought by J. W. Allen against the San Antonio Machine & Supply Company to recover commission and salary alleged to be due him under the terms of the following memorandum contract executed by the parties:

                           "San Antonio, Tex., Jan. 1, 1920
                

"It is understood between the Samsco & J. W. Allen that the latter is to represent us in his territory on a basis of $400.00 per month, being payable the 1st and 15th of the month, this amount to represent his salary & all expenses. It is further agreed that the company is to pay him a commission of 2 per cent. on his gross sales, exclusive of car load business and special machinery sales, over and above the amount of $75,000.00. This contract can be terminated by either party by giving 30 days written notice.

                                   "[Signed]   A. A. Willke
                                               "F. B. Sechrist
                                               "C. C. Krueger
                                   "[Signed]   J. W. Allen."
                

Appellee contends that the language of the contract as written is ambiguous; that the "territory" therein mentioned embraced certain named counties; and that the term "his gross sales," used in the contract, was intended to embrace all sales of appellant's goods made in Allen's territory, whether such sales were made or procured by him or by other agents or agencies of the company. In the opinion on the former appeal this court held that under appropriate pleadings these terms were sufficiently ambiguous to allow parol proof of the meaning and construction placed thereon by the parties. We adhere to that holding, and proper pleading and proof was made thereunder upon the last trial. We therefore overrule appellant's first, second, fifth, and seventh propositions of law, in which the question is again presented for review.

The trial court submitted to the jury the issue of "what is meant by the term or phrase `his gross sales,' as used and understood by the parties at the time they made said contract?" To which the jury answered:

"All the entire territory sales, excluding special machinery sales and carload sales, also sales which would naturally occur unsolicited (this amount determined by averages and approximations of jury)."

Appellant contends that the jury went out of their way to include "sales which would naturally occur unsolicited" within the meaning of the phrase "his gross sales." Appellant contends that the contract sued on, even when construed as broadly as appellee construed it, does not encompass such an element as sales "which would naturally occur unsolicited." It is true that this expression does not appear in appellee's pleadings, and, if it were deemed material, it would also be deemed fatal to the finding. But in the light of the record, and of the preceding finding of the jury that "all territory sales" were included in the meaning given by the parties to "his gross sales," the inclusion of unsolicited sales added nothing to the finding, and did not serve to enlarge appellant's liability thereunder. In other words, the additional clause appears to be mere surplusage, and could be omitted without affecting the liability or duty of the parties. Appellant's third proposition, relating to this question, will be overruled.

Appellant also complains of the action of the jury, as disclosed in the concluding sentence in said answer, in determining the amount of unsolicited sales "by averages and approximations of jury." The meaning of this interpolation in the jury's answer is quite problematical, and, in the absence of any explanation thereof from the jurors themselves, it would be impossible to appraise its influence upon the ultimate findings of the jury, or its weight, if any, as affecting the validity of the verdict. The point is an unusual one, but we see no reason why the incident, unexplained, should be so construed and given effect as to impair the integrity of the verdict and judgment; rather should it be resolved, in the absence of explanation, in support thereof. We conclude that, if appellant was dissatisfied with this phase of the verdict, it rested under the duty of calling the foreman or other jurors and examining them under the direction of the court touching the meaning, purpose, and effect of the queer appendage to their finding. The fourth and ninth propositions are overruled.

In its sixth propos...