Sherman v. Port Huron Engine & Thresher Co.

• Decision Date: 03 April 1900
• Citation: Sherman v. Port Huron Engine & Thresher Co., 13 S.D. 95, 82 N.W. 413 (S.D. 1900)
• Parties: SHERMAN et al. v. PORT HURON ENGINE & THRESHER CO.
• Court: South Dakota Supreme Court

82 N.W. 413

13 S.D. 95

SHERMAN et al. v. PORT HURON ENGINE & THRESHER CO.

Supreme Court of South Dakota

April 3, 1900

Appeal from Minnehaha county court; William A. Wilkes, Judge.

Action for commissions by P. F. Sherman and others, co-partners against the Port Huron Engine & Thresher Company. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Fuller P. J., dissenting.

Rochford & McMahon, for appellants. Bailey & Voorhees, for respondent.

HANEY J.

A judgment for plaintiffs in this action was reversed on a former appeal. 8 S.D. 343, 66 N.W. 1077. Plaintiffs allege in their amended complaint, for a first cause of action, that they were employed by defendant to procure purchasers of threshing machines; that they procured a purchaser, in the person of Frank Bates, who was ready, able, and willing to purchase a threshing outfit, and from whom they procured an order for such outfit, in conformity with their contract of employment; that defendant wrongfully and without cause refused to fill such order; that had such order been filled and the outfit delivered, plaintiffs' compensation under their contract would have been $470, no part of which has been paid. They allege as a second cause of action that under their contract of employment they effected a sale to one Tyler and others, who settled with defendant, giving their notes, one of which was for $370.50; that before this action was begun this note was paid, the amount received thereon by defendant being $409.25; and that there was due to plaintiffs upon the payment of this note the sum of $81, no part of which has been paid. Defendant alleges that the employment was under a written contract, admits that no machinery was delivered to Bates, and denies the other allegations of the first cause of action. The sale to Tyler is admitted, but defendant denies that it had received any proceeds of the note mentioned in the complaint when this action was commenced. The court below directed a verdict for defendant and refused a new trial, and plaintiffs appealed.

Plaintiffs were located at Sioux Falls, in this state; defendant, at Port Huron, Mich. In the written contract, defendant agrees to furnish plaintiffs with certain machinery to fill orders in conformity with such contract, so long as it has goods on hand not engaged, to be sold on commission, subject to the terms and conditions of the contract. Plaintiffs agree that they will take orders for machines, on blanks furnished by defendant, promptly sending original to defendant, keeping a copy, and delivering a copy to purchaser, and thereby guaranty the payment of notes taken for goods, at maturity, or at any time thereafter, waiving demand and notice of protest and nonpayment (the written contract to be sufficient evidence of said guaranty), unless plaintiffs have received, in writing, defendant's acceptance of order before delivery of goods. Plaintiffs agree not to deliver any machinery until the same is fully settled for by purchaser as required in the order and in the contract, and until acceptance by defendant. In case of nonfulfillment of last clause, plaintiffs to pay for machinery in cash, on demand, the full list price thereof, with interest from day of delivery; defendant to pay for services rendered, or costs and expenses incurred on account of such delivery. In consideration of the faithful performance by plaintiffs of the contract, defendant agrees to pay them, on goods sold, settled for, and delivered by them, only, certain commissions; no commission to be paid on any order not filled, or on any machine returned or taken back, for any cause whatever. An order for one of the machines described in the foregoing contract, signed by Bates, presumably on a blank furnished by defendant, was taken by plaintiffs at Sioux Falls, and promptly forwarded to defendant. On the day it was taken, plaintiffs wired defendant for a separator, without stating for whom it was intended. The engine ordered was then at Sioux Falls. Without knowing to whom it would be sold, the officers of defendant at Port Huron shipped the separator. Upon receipt of the Bates order, they directed one Farnsworth to forbid a delivery to Bates unless plaintiffs would indorse the notes which he had agreed to give for the machinery. This they refused to do, and it was never delivered. The Bates order contained this clause: "This order is taken subject to approval of the Port Huron Engine & Thresher Company."

As the record now before us contains the same contract of employment that was presented by the former appeal, the interpretation then given it by this court is the law of the case, and must be followed at this time. Wright v. Lee, 10 S.D 263, 72 N.W. 895; Bank v. Gilman, 3 S. D. 170, 52 N.W. 869; Lumber Co. v. Mitchell, 4 S. D. 487, 57 N.W. 236; Tanderup v. Hansen, 8 S. D. 375, 66 N.W. 1073. This court then said: "The indorsing of notes by plaintiffs is not contemplated by the contract. Defendant could not require them to do so, but it could, under certain circumstances, refuse to fill orders. This is, in effect, what was done in this case; its right to do so being the real controversy between the parties. Whether Farnsworth was authorized to approve, or whether he did approve, the order, is immaterial. Defendant could approve, and, for good cause, subsequently refuse to fill, an order. Whether, under this contract, defendant did not have an absolute right to reject any order, is a question we do not decide; but, taking the view most favorable to plaintiffs, it was a question of fact whether it was justified in doing so in this case. It will be presumed that defendant acted in good faith. Evidently, it was not satisfied with the security offered. The burden was on plaintiffs to show that this order was one with which defendant should have been satisfied. We cannot say the evidence was conclusive on this point, and therefore plaintiffs were not entitled to a direction of verdict, upon any theory whatever." 8 S.D. 343, 66 N.W. 1077. Adhering to the views thus expressed, we now hold that defendant did not have an absolute right to reject the Bates order. Richison v. Mead, 11 S.D. 63, 80 N.W. 131. Evidence was offered on the second trial tending to prove that it was an order with which defendant should have been...