Spencer Medicine Co. v. Hall

• Decision Date: 07 April 1906
• Parties: SPENCER MEDICINE COMPANY v. HALL
• Court: Arkansas Supreme Court

93 S.W. 985

78 Ark. 336

SPENCER MEDICINE COMPANY v. HALL

Supreme Court of Arkansas

April 7, 1906

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge affirmed.

Judgment affirmed.

Atkinson & Patterson, for appellant.

1. The second instruction given at plaintiff's request was erroneous, in charging the jury that any manifestation by defendant of an intention not to perform the contract authorized plaintiff to repudiate it. Nothing short of complete renunciation will suffice. 9 Cyc. 636, II, A. & B.

2. The court erred in giving plaintiff's third instruction and in refusing the second asked by defendant. Profits he would have earned, had he continued, were an element of damage too uncertain for recovery. 1 Suth. Dam. § 69; 2 Ib. § 694. "Where the agent is to be paid in part by a commission, he can in general recover no damages on account of possible future commissions." 2 Sedg. Dam. § 6871; 8 Am. & Eng. Enc. Law, 624d; 77 Ala. suffice. 9 Cyc 636, II, A. & B.

3. The fourth instruction given for plaintiff was erroneous. The law does not require a merchant to accept an order for goods. He may establish his own rules and methods. If defendant for business reasons rejected any orders, plaintiff was bound thereby. He contracted with reference to defendant's judgment.

4. Plaintiff can not recover for past services, and at the same time damages for breach of contract for future employment. 58 Ark. 621; Clark & Skyles on Agency, 826, c.

Marshall & Coffman, for appellee.

1. Manifestations by words or acts of an intention not to perform the contract will authorize the other party to treat it as repudiated and bring his action. 48 Minn. 119; 27 Ark 61. Any act inconsistent with intention to be longer bound is enough. 19 Am. Rep. 288; 10 Ont. App. 677; 61 N.W. 876; 35 P. 136. It was a question peculiarly for the jury. 58 Ark. 504; 30 N.E. 986; 83 Hun, 610.

2. Plaintiff adopted the course laid down in 58 Ark. 504, cited by appellant, and sued for damages for the breach at once. The trial being had after the expiration of the period when the service would have ended, he was entitled to his entire damage on the contract. The agent may recover the unpaid compensation earned prior to the breach, and in addition the damages sustained by reason of the breach. 1 C. & S. on Ag. 826; 39 Ark. 840; 41 Am. Rep. 584; 19 Id. 285.

3. Where the agent presents a purchaser ready, willing and able to take the property at the price and on the terms named, his commissions are earned.

4. The profits plaintiff would have made, had the contract been carried out, were susceptible of proof. Such damages are not speculative or remote, and the difficulty in ascertaining them does not deter the courts from awarding such compensation for their breach as the evidence shows with reasonable certainty the wronged party is entitled to. 1 Suth. on Dam. § 69; 10 N.Y. 489; 99 F. 222; 101 N.Y. 205; 127 F. 403; 55 N.W. 391; 52 P. 522; 69 Ark. 219.

MCCULLOCH, J., HILL, C. J., not participating.

OPINION

MCCULLOCH, J.

This is an action brought by appellee against appellant to recover commissions on sales of goods earned by him as traveling salesman of appellant, and for prospective commissions which he was prevented by wrongful discharge from earning under the following written contract:

"CONTRACT.

"Chattanooga, Tenn., December 29, 1902.

"We agree to pay Dan Hall fifty per cent. on sales amounting to $ 10,000, twenty per cent. of this sum to be spent by him in advertising and to pass through our office. Commissions due when orders are accepted. This contract terminates when the amount of $ 10,000 has been reached.

"Spencer Medicine Company,

"By C. C. Nottingham, Secretary."

The plaintiff sued for $ 65 commission on sales made, and $ 1,500 on prospective commissions as damages for breach of contract. He testified that defendant owed him a balance of $ 64.05 on earned commissions, including two orders which defendant declined to ship. He also testified that, judging from past experience, he could have made sales amounting to $ 2,000 in sixty days, and could have sold $ 10,000 in about one hundred days--that he made sales of $ 336 in the four days that he worked, and that he made more than his expenses in selling "side lines," which did not interfere with his sales for defendant.

The defendant denied that it had failed or refused to comply with the contract, or that it had refused to allow plaintiff to comply with the contract. It also denied that plaintiff had complied with the terms of the contract, or had earned the commissions claimed, or had paid the stipulated amount in advertising.

The court gave the following instructions at the request of plaintiff, to each of which the defendant objected:

"2. It is not only an absolute refusal in words to perform a contract, but also manifestations by words or acts of an intention not to perform it according to its terms, that will authorize the other party to treat it as a repudiation and bring his action; and if you find from the evidence that the Spencer Medicine Company manifested its intention by words or acts not to perform the contract in question according to its terms, then Hall had a right to treat it as at an end, and is entitled to damages, if any be shown by the evidence to have accrued to him thereby, providing he himself had performed his part of the contract.

"3. If you find for the plaintiff (Hall), you will allow him whatever sum, if any be shown by the evidence to be due him, for commissions earned and not paid, and you will also allow him whatever profits he would have made, if any be shown by the evidence, had the contract been carried out according to its terms.

"4. If you find from the evidence that orders were taken by Dan Hall from parties who were ready, willing and able to pay same, and that said Hall complied with the instructions of the Spencer Medicine Company in determining whether said parties were entitled to credit, then you will allow Hall his commissions on such orders, notwithstanding the fact that said orders were not accepted by Spencer Medicine Company, unless such non-acceptance was for good business reasons."

The court also gave the following instructions at the request of defendant:

"1. The plaintiff, in order to recover for the amount alleged to have been due him when he left defendant's employment, must show that he did spend 20 per cent of the amount of his sales in advertising defendant's goods and report the same to its office and return all articles charged to him, if you find there was an agreement to that effect, and in his hands belonging to them, unless the performance of same has been waived by parties.

"3. If the jury find in this case that the defendant discharged the plaintiff from its service, but that the plaintiff habitually and regularly violated the terms of the contract, and could not be induced to comply with it, they will find for the defendant.

"4. If the jury find from the evidence that by a mutual understanding between plaintiff and defendant the plaintiff retired from its services, they will find for the defendant.

"7. If the jury find for the plaintiff for damages because of his discharge, they will assess his damages at what he would have earned, judging by his past success, less what he did thereafter earn, during the term he would have been engaged in fulfilling his contract."

The following instructions asked by defendant were refused:

"2. The court instructs the jury that if it finds that the defendant without proper cause discharged the plaintiff from its employment, and that under his terms of contract he was selling goods upon a commission, he can not recover for the damages therefor because the damages are too uncertain.

"5. The court instructs the jury that the plaintiff in this case can not recover in this action for the amount of the wages for his services while in the employment of the defendant company, and at the same time for damages for a breach of the contract for future employment.

"6. The court instructs the jury that there is no evidence in this case that the defendant discharged the plaintiff, Dan Hall, from its employment, and he is therefore entitled to no damages for a breach of the contract."

The jury returned a verdict in favor of the plaintiff for $ 65 commissions on sales and $ 500 damages for breach of contract.

It is argued that the second instruction given at the instance of plaintiff was erroneous, but we do not think so, especially when this instruction is considered in connection with those given at the instance of defendant. It is sufficient, where a party to a contract has, either by words or conduct, distinctly and unequivocally manifested his intention not to perform the contract, to justify the other party in treating it as at an end for the purpose of suing for breach thereof.

It is insisted by appellant, in this connection, that the evidence was insufficient to support a finding that it had discharged the plaintiff, and thereby repudiated the contract, but we are unable to reach a conclusion in accord with either of the contentions that the instruction on the subject was erroneous or that the evidence was insufficient. The evidence on the point is far from satisfactory, but, considering the correspondence between the parties which was put in evidence, the conversations between the plaintiff and the secretary of defendant company as detailed by the former in his testimony, and the transaction with reference to the refusal of defendant to fill certain orders sent in by plaintiff for goods, we can not say that the jury were not warranted in reaching the conclusion that the defendant plainly evinced an intention not to perform the contract. This was a question...