San Antonio Machine & Supply Co. v. Allen

• Decision Date: 09 June 1926
• Docket Number: (No. 671-4562.)
• Citation: 284 S.W. 542
• Parties: SAN ANTONIO MACHINE & SUPPLY CO. v. ALLEN.
• Court: Texas Supreme Court

284 S.W. 542

SAN ANTONIO MACHINE & SUPPLY CO. v. ALLEN.

(No. 671-4562.)

Commission of Appeals of Texas, Section B.

June 9, 1926.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by J. W. Allen against the San Antonio Machine & Supply Company. Judgment for plaintiff was affirmed in part and reversed and rendered in part by the Court of Civil Appeals (279 S. W. 493), and defendant brings error. Reversed and rendered for plaintiff in lesser sum.

See, also, 268 S. W. 532.

J. C. Scott, of Corpus Christi, and Goeth, Webb & Goeth, of San Antonio, for plaintiff in error.

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

POWELL, P. J.

During all of the year 1920 and during January and February, 1921, one J. W. Allen acted as traveling salesman in the Corpus Christi territory for the plaintiff in error. He worked under the following written contract, to wit:

                           "San Antonio, Texas, January 1, 1920
                

"It is understood between the Samsco and 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 and 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 carload business and special machinery sales, over and above the amount of $75,000. This contract can be terminated by either party by giving 30 days' written notice.

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

At the end of 1920, the company (its tradename was "Samsco") sent Allen a check for $84, which it found, under its contract, it was due him for his commissions for that year in addition to his regular salary. Allen refused to accept the check, contending that his commissions were largely in excess of that amount. The sole material controversy arose over his claim that his commissions were to apply to all sales made by the company in his territory, exclusive of carload business and special machinery, whether he had made such sales or not. It was shown that the company received many mail and telephone orders with which Allen had nothing to do. Allen wanted a commission on sales of that kind.

Alleging his version of the contract, and contending that the contract itself was ambiguous, Allen sued the company for $1,808.67, with legal interest thereon from March 1, 1921, that amount being 2 per cent. commissions on $90,433.68, which latter amount he alleged to be the company's sales in excess of $75,000.

Upon a trial before a jury, the construction of the contract was submitted to it. It adopted Allen's view, but found that the sales in excess of $75,000 were only $40,844.22. Therefore the trial court awarded him a judgment for $816.88, with legal interest from the date aforesaid.

Upon appeal to the Court of Civil Appeals, that court affirmed the judgment in favor of defendant in error for the $816.88 aforesaid, but reversed and rendered the judgment of the trial court in the following respect:

"We have disposed of all of appellant's propositions except the eighth, but for which the judgment of the court would be affirmed as it was rendered below. It appears from the record, however, that in the judgment of this court on the former appeal the costs of that appeal were adjudged against the appellee. Notwithstanding that judgment of this court, however, the trial court in the last trial rendered judgment in favor of appellee for all costs `incurred or paid or expended' by appellee in the former appeal. This was error, as a matter of course. The judgment of this court was final in all aspects, including the adjudication of the costs of that appeal, and the trial court, of course, had no power to set aside that judgment. This does not require a reversal of the judgment in this cause, however. It is sufficient to affirm the judgment in so far as it affects the cause on its merits, and to reverse the judgment as to the costs of the former appeal and render judgment for appellant in that particular. This will be done. As the action in the matter of costs was properly and seasonably challenged by appellant in the court below, it is incumbent upon this court to tax the cost of the [this] appeal against appellee, which is accordingly done."

The defendant in error filed a motion for rehearing in the Court of Civil Appeals attempting to get that court to relieve him of costs upon each of the appeals. Said motion was overruled. No application for writ of error was filed by defendant in error. Therefore that part of the judgment of the Court of Civil Appeals is final, and the costs of both appeals stand assessed against defendant in error.

The opinion of the Court of Civil Appeals in the instant case is reported in 279 S. W. 493. That opinion states the case fully, and also the reason for the reversal of the case upon the first appeal.

It is insisted in this court, by plaintiff in error, as it has contended in every court at all times, that this contract is clear and free from ambiguity, and that its meaning should not have been submitted to the jury. We think this assignment must be sustained. The Court of Civil Appeals admits that the court alone, as a matter of law, should construe a written contract in the absence of ambiguity. That court also admits that parol evidence will not be admitted to vary or explain the terms of this contract, no fraud, accident or mistake in its execution being alleged or proved, unless it can be said that the same is ambiguous. These rules of law are...