Schoenberg v. Forrest

• Decision Date: 01 March 1950
• Docket Number: No. 12041,12041
• Citation: 228 S.W.2d 556
• Parties: SCHOENBERG v. FORREST.
• Court: Texas Court of Appeals

Page 556

228 S.W.2d 556

SCHOENBERG v. FORREST.

No. 12041.

Court of Civil Appeals of Texas, San Antonio.

March 1, 1950.

Rehearing Denied April 5, 1950.

Forrest A. Bennett, San Antonio, William C. Davis, San Antonio, for appellant.

Palmer & Lemons, San Antonio, Alfred M. Scott, Austin, for appellee.

BROETER, Justice.

This is a case in which Jack Forrest sued Isidore Schoenberg for damages on account of an alleged breach of a written sales agency contract executed by them of date December 30, 1947. By the terms of such contract Jack Forrest was designated sales agent for a jewelry item described as 'Collar Bobs', for a period of twenty years, on a commission basis, over a territory composed of several states and portions of states, and substantially comprising the eastern half of the United States. The paragraphs of such contract that are material for the disposition of this appeal are the following:

'1. Said Isidore Schoenberg gives and grants unto Jack Forrest a general sales agency for the following territory, the States of: (Here follows a list of the states and territory, roughly comprising the eastern part of the United States) on the product of the Collar Bobs Company, known as Collar Bobs and said Jack Forrest agrees to act as the general sales agency for the product above described in said territory for the period of twenty (20) years from the date of this agreement.

'2. That said Jack Forrest will organize, employ and hire salesmen and shall from time to time increase sales force in said territory and promote the further sales of the product in keeping with the demands of such territory, and that said salesmen so employed and hired shall be employees of Jack Forrest and not the Collar Bobs Company.

'3. Said Jack Forrest covenants and agrees to exert his best efforts to organize such sales force throughout the aforesaid territory and to sell the said product throughout the aforesaid territory during the period covered by this agreement and he further covenants and agrees that he will devote the whole of his time, attention, and energies to the performance of such duties, and that he will not be connected with or concerned in any other business or pursuit whatsoever during the term of years above set out.

'4. Said Isidore Schoenberg covenants and agrees that said Collar Bobs Company will pay to said Jack Forrest a commission of thirty per cent (30%) on all sales in said territory, commission to be payable in San Antonio, Texas, at the close of each fiscal month. In such places where the said Jack Forrest has salesmen he shall receive the difference in commission between 30% and such portion as he may direct to be paid said salesmen. * * *

'7. It is further understood and agreed by and between the parties hereto that if said Jack Forrest is not properly promoting the sale of Collar Bobs with reasonable diligence and effort and the full devotion of his time thereto, then after written notice by Isidore Schoenberg to that effect Jack Forrest shall have a reasonable length of time to correct this breach. Upon failure to correct same within such reasonable time then Isidore Schoenberg shall have the option of declaring this contract null and void.

'8. It is further understood by and between the parties hereto that all expenses of Jack Forrest and his salesmen incurred for traveling and otherwise pertaining to and in connection with this contract and the business of Collar Bobs shall be paid by such salesmen and Jack Forrest without any liability to him for same from Isidore Schoenberg or the Collar Bobs Company.'

Plaintiff claimed he had organized and employed salesmen, had sold Collar Bobs, had used his best efforts to employ salesmen, and in all respects had complied with the obligations imposed upon him under such contract; that defendant had terminated said contract to plaintiff's damage. Defendant claimed that plaintiff had failed to employ salesmen and failed to comply with such contract; that he had notified plaintiff of his failure and given him reasonable time to correct such failure but he had not done so and therefore defendant terminated said contract.

The trial was by the court with the aid of a jury, and the cause was submitted to the jury upon special issues. Upon the answers of the jury that plaintiff had complied with all his obligations under the contract and that plaintiff suffered $10,000 in damages as a result of the termination thereof by the defendant, the court rendered judgment in favor of plaintiff for the sum of $10,000. From this judgment defendant below has appealed. Appellant groups his points of appeal on which he asks that this cause be reversed and rendered in one group, and the points on which he asks that this case be reversed and remanded in another group, and, in making disposition of this case, we will consider such points as grouped.

Appellee makes severe criticism of the form of appellant's brief. However, he does not present any motion to this Court asking that appellant's brief be stricken, but has filed a brief in reply thereto. Under some of the counter-points raised by appellee there are statements that certain points raised by appellant should not be considered by the Court because they are not properly briefed. If it be proper for this Court to consider any such statements this Court will do so in passing on the counter-points.

Appellant's Point I recites that the trial court erred in overruling his special exception to paragraph IV of plaintiff's petition, on the ground that said paragraph was vague and indefinite and did not name the salesmen employed nor the methods used to promote the sale of Collar Bobs and that by virtue of such failure plaintiff was allowed to introduce testimony which otherwise would not have been admissible.

We believe the ruling of the court in overruling this exception is correct. Paragraph IV of plaintiff's petition in substance recites that the plaintiff, in pursuance of his obligation under the contract, did devote all of his time and energies in the promotion of the defendant's product in the territory described; that he employed salesmen and promoted sales in keeping with the demands of such territory; that he traveled at his own expense to many cities and states for the purpose of promoting sales; that in the promotion of said product plaintiff was required to and did expend all of his time, efforts and energies in acquainting the market and outlets with such product; that to introduce and promote such product and create a demand therefor he sold such product to many leading department stores in the United States, and he named the stores to which he had sold the product and their locations. Appellant's Point No. I is overruled.

By Point II appellant contends that the court erred in failing to grant his motion for an instructed verdict at the close of the testimony, because the evidence shows that the plaintiff had breached the contract and because there was no evidence on which the court could submit an issue of damages to the jury. We believe that the ruling of the court in refusing this motion on the grounds mentioned was correct. There was some evidence to the effect that the plaintiff had not employed any salesmen during some of the first months of the year 1948, but the plaintiff testified that he had used his best efforts to employ such salesmen and did have salesmen working, and that he had sold Collar Bobs all during that year and had received commissions from the defendant on his sales. The evidence also shows that the plaintiff earned in commissions substantial sums of money during the eight months that he worked under this contract. We quote a portion of plaintiff's testimony, as follows:

'Q. Mr. Forrest, from January 1st through August, 1948, I will ask you to tell me first what were your commissions during that period of time by the month? A. Each month?

'Q. Yes. A. My commissions in January were $1,458.17. My commissions for February were $1,150.90. My commissions for March, $1,931.69. April, $1,218.90. May, $1,809.39. June, $951.62. July, $752.22. August, $309.76, and there was $38.00 in this advertising that I paid for that was charged off to my account, which gave me a net $271.76.'

He also testified as follows:

'Q. Well, you have already testified about the commissions that you made. Now, I want you to testify what commissions each of your salesmen made for each month during that period for themselves. A. For themselves?

'Q. Yes. A. Well, I don't have it figured here, but I will give you the volume of their sales and it will be twenty per cent of that.

'Q. All right, give us the volume of their sales. A. In January, Ver Steeg's volume was $1,634.00 plus $229.80. That latter amount of $229.80 was a carry over from December. Jackson $174.65. Cole, $113.50. Dillion, $932.25. Brown.$9.00. The month of February Jackson, $93.25. Brown, $42.00. Cole, $64.00. Dillon, $15.31. Ver Steeg, $947.75. In March, Dillon, $1,418.10, Ver Steeg, $837.10. Jackson, $139.22. In April, Dillon, $2,158.65. Ver Steeg, $573.05. Jackson, $155.00. In May, Dillon, $1,870.71. Ver Steeg, $551.25. In June, Dillon's sales were $831.75. Ver Steeg, $583.20. Cole, $81.00. Arnston, $631.75. In July, Ver Steeg was $225.00. Dillon didn't do anything at all. He had a net deficit of $1.09. In August, Ver Steeg did $223.50. Dillon did $25.40, and Bagby, $43.00.

'Q. I will ask you now whether or not in your opinion as sales agent for Collar-Bobs Company you had by August of 1948 all of the salesmen that the territory that you had demanded? A. I think so, yes sir.'

And, as to his earnings under the contract of April 10, 1947, plaintiff testified:

'Q. What did you earn as commissions under that first contract? A. By month?

'Q. Yes. A. This is a report or statement--

'Mr. Davis: We object to the witness testifying to what that is he has there. If he wants to use it to testify from he may do it, but it has not been...