Schulze v. Shea

• Decision Date: 07 May 1906
• Parties: SCHULZE v. SHEA.
• Court: Colorado Supreme Court

86 P. 117

37 Colo. 337

SCHULZE v. SHEA.

Supreme Court of Colorado

May 7, 1906

Rehearing Denied June 4, 1906.

Appeal from District Court, Arapahoe County; Booth M. Malone, Judge.

Action by William A. Shea against William Schulze, doing business as William Schulze & Co. From the judgment in favor of plaintiff, defendant appeals. Reversed.

John T. Bottom, for appellant.

Bicksler Bennett & Nye for appellee.

GUNTER J.

This was an action to recover commissions upon sales of merchandise made by appellee under employment of appellant. From a verdict and judgment for appellee is this appeal.

Appellant was a woolen merchant, with his place of business in Scotland. The contract under which appellee was employed was created by letter of date August 31, 1893, from appellant to appellee, and appellee's reply thereto of date September 2, 1893. The pertinent part of the contract is disclosed in the following, taken from said letter of appellant: 'We allow you the following commission on your transactions viz.: Ten (10) per cent. on your transactions with merchant tailors and six and a half (6 1/2) per cent. on transactions with wholesale clothiers and jobbers. The commission comprises all expense (traveling, etc.) and is understood on amounts paid. Twice a year, viz., on 30th June and 31st Dec. we render account. In it we credit the commission on transactions paid until then, and those transactions which are pending still are carried forward to next account to be treated there according to the same principle. We shall be glad to advance to you fifty (50) pounds a month during the time you are traveling for expense, and we shall altogether advance to you willingly to the extent of two-thirds of the commission on transactions pending. On failures, of course, no commission is allowed. You will take every possible care to avoid them and deal only with good customers. We want to do only with such.' The employment thus created continued until November 1, 1897. If the contract remained during this period as originally made, and as disclosed by the above letters, then appellee is indebted to appellant in a considerable sum for overdrafts on his account, instead of appellant being indebted to appellee, as the jury found and as the court adjudged.

It is contended, however, by appellee that between December, 1893 and March, 1894, the original contract was changed by letter. Appellee says that between these dates he wrote appellant he would stay in his employment if he would be credited with commissions when goods were shipped, otherwise he would not, and that appellant answered by letter, 'All right.' It will be observed that according to the original contract the commissions were to be paid semianually on goods sold when paid for. The only issue of fact so presented was, was the original contract so changed that appellee was to be credited on the goods sold when the sale was made? The burden was upon appellee to prove this change in the written contract. The only evidence for appellee was his testimony given in the presence of the jury. He testified that between December 23, 1893, and March, 1894, he wrote appellant demanding this change in the original contract; that appellant replied in a short letter that the requested change was 'all right.' Appellee was unable to produce a copy of this letter to appellant, or the reply thereto. He testified that his copies of the letter had been destroyed by fire. Although appellee knew from the time of lodging his complaint herein that his case rested on this modification by letter of the original contract, he made no reasonable effort to secure his letter to appellant, or appellant's reply thereto, if they were in existence. Although the depositions of appellant, his chief clerk, his bookkeeper, and shipping clerk were taken, the letters relied upon were not asked for, or inquired about by appellee. The depositions were taken in Scotland, the correspondence in question, if in existence, was there, but no request was made to adduce the alleged correspondence until this case was set for trial. Further, the fact that such modification in the contract was made was directly and irreconcilably contradicted by the letters from appellee to appellant during the years 1894 to 1897, inclusive, and by the statements of account sent by appellee to appellant from time to time during said years, and admitted by appellee by letter to be correct. Of these letters and this correspondence we will speak more in detail later on. The testimony of appellee is directly contradicted by that of appellant, his chief clerk, his bookkeeper, and his shipping clerk.

The testimony of appellant and his witnesses is not impaired by cross-examination or otherwise. We have no reason for discrediting it. It is convincingly corroborated by the correspondence and statements of the years mentioned. In May 1895, appellee wrote appellant: 'The arrangement I have with you, as I understand it, is that I am to receive a commission of 10 per cent. on all T. sales and 6 1/2 per cent. on all W. sales, and I am to pay all my expenses. * * * I am to be credited with commissions only when the bills are paid; but, so as to enable me to...