Smith v. David B. Crockett Co.

• Decision Date: 07 March 1912
• Citation: 82 A. 569,85 Conn. 282
• Court: Connecticut Supreme Court
• Parties: SMITH v. DAVID B. CROCKETT CO.

82 A. 569

85 Conn. 282

SMITH v. DAVID B. CROCKETT CO.

Supreme Court of Errors of Connecticut.

March 7, 1912

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by George Frank Smith against the David B. Crockett Company. From a judgment for plaintiff, defendant appeals. Error, and new trial ordered.

James A. Marr, for appellant.

William B. Stoddard, for appellee.

HALL C.J.

Paragraph 1 of the complaint alleges that on the 6th of April, 1906 the plaintiff and the defendant entered into the following written agreement: " April 6, 1906. Agreement made this day between the David B. Crockett Company of Bridgeport party of the first part, and Mr. G. F. Smith of Milford, Conn., party of the second part. The party of the first part agrees to pay the party of the second part the sum of two thousand dollars ($2,000) per annum, and if the sales of the said party of the second part reach the sum of thirteen thousand dollars ($13,000) between the first day of May, 1906, and the first day of May, 1907, they agree to pay the further sum of five hundred dollars ($500), and if the sales reach twenty thousand dollars ($20,000) the sum of one thousand dollars ($1,000) will be paid in addition to the $2,000. The party of the second part agrees on his part to use his best endeavors to sell the goods manufactured by the party of the first part to railroads, steam, trolley, etc.; the party of the first part agrees also on the first of every month to pay the party of the second part one hundred dollars ($100) for expenses during the month following, also to allow the party of the second part to pay to persons unknown to the party of the first part a bonus amounting to not more than twenty-five cents (25 cts.) per gallon." Paragraph 2 and 3 allege that the plaintiff continued in the employ of the defendant under said contract performing his duties until October 1, 1909, when by mutual agreement, said contract was abandoned, and that there remains due the plaintiff under the contract for salary and expenses the sum of $2,500, for which a bill of particulars was filed by the plaintiff showing the amount of his salary during said period to be $7,000; the amount of his expenses incurred to be $4,200, and the amount paid to him to be $8,650. In its second defense the defendant alleges, in substance, that the agreement under which the plaintiff sues provides that, in order to make sales of the goods in question, the plaintiff was permitted to pay a bonus of not more than 25 cents per gallon to persons who were to be unknown to the defendant, and that it was so made for unlawful objects, and that it is void as being contrary to public policy. The defendant attached to his answer a statement showing that, in rendering the services and incurring the expenses for which this suit is brought, the plaintiff paid bonuses to persons unknown to the defendant, and which have been repaid to the plaintiff, to the amount of $547.95. The court found that the defendant had paid to the plaintiff the $7,000 salary, the $547.95 bonuses, and that there was due the plaintiff $1,750 under the provision of the contract giving him $100 a month for expenses, which sum with interest made up the judgment in favor of the plaintiff of $1,927.33.

During the trial, the defendant, in support of its claim that said agreement for the payment of bonuses was illegal, asked of the plaintiff as a witness various questions to show what was done in the payment of bonuses, and whether they were paid to the agents who purchased goods, and for the purpose of influencing such agents to purchase such goods for their principals. These questions were excluded by the trial court, apparently upon the grounds that the provision concerning the payment of bonuses, even though invalid, is separable from the other provisions of the agreement, and is not the provision of the contract sued upon or sought to be enforced by the plaintiff. That such was the view of the trial court is indicated by its statement in excluding the offered evidence that, if the plaintiff were seeking to recover the $500 bonus which he had paid out, he would be " standing on quite a different basis."

We are of opinion that by the present action the plaintiff is in effect asking the court to enforce the objectionable provision of the contract concerning bonuses. While the finding shows that the plaintiff has been repaid the large sum, which in accordance with the items of the contract he paid as bonuses, he has not been fully paid, as the contract provided he should be, for his services in procuring such sales, and he is by this action asking for the payment of the remainder of the compensation which under the contract he was to receive for his services and expenses in making sales by the method provided by the contract. The duty of the plaintiff under the contract and the real and only purpose for which he was employed, and for which he was to be paid, was to make sales of the goods manufactured by the defendant. What these goods were the contract does not indicate, any further than that they were goods to be sold by the gallon. The finding, however, states that they were varnishes. The plaintiff was to sell these goods to " railroads, steam, trolley," etc. The contract provided that in order to make such sales the plaintiff might pay bonuses to parties unknown to the defendant. It also contemplated the plaintiff would devote his time, wholly or in part, to the making of such sales, and would incur other expenses than the payment of the bonuses. For all such services and expenses, if the sales made between May, 1906, and May, 1907, did not reach $13,000, the plaintiff was to receive $2,000...