Talbert v. Solventol Chem. Prods., Inc.

• Decision Date: 06 April 1943
• Docket Number: No. 64,October term, 1942.,64
• Citation: 304 Mich. 557,8 N.W.2d 637
• Parties: TALBERT v. SOLVENTOL CHEMICAL PRODUCTS, Inc.
• Court: Michigan Supreme Court

304 Mich. 557

8 N.W.2d 637

TALBERT

v.SOLVENTOL CHEMICAL PRODUCTS, Inc.

No. 64, October term, 1942.

Supreme Court of Michigan.

April 6, 1943.

Suit by Howard A. Talbert against Solventol Chemical Products, Inc., a corporation, to recover damages allegedly resulting from breach of a contract. From an order denying defendant's motion to dismiss guardianship proceedings instituted in connection with suit, defendant appeals.

Affirmed and remanded.

SHARPE, J., dissenting.

Appeal from Circuit Court, Wayne County; Adolph F. Marshner, judge.

Before the Entire Bench, except CHANDLER, C. J.

Yerkes, Sells & Putnam, of Detroit, for appellant.

Max Kahn, of Detroit, for appellee.

NORTH, Justice.

Plaintiff brought this suit to recover damages alleged to have resulted from breach of a contract, such contract being evidenced by letters written to plaintiff by defendant company. The common counts were added to the special count in plaintiff's declaration. While suit was thus pending, plaintiff filed an affidavit for writ of garnishment, averring that the defendant ‘is justly indebted to said plaintiff upon such contract, in the sum of one hundred thousand dollars ($100,000.00), over and above all legal set-offs * * *.’ Writs of garnishment were served on six garnishee defendants. The trial court denied defendant's motion to dismiss the garnishment proceedings. Leave having been granted, defendant has appealed.

Defendant's motion to dismiss was based on the grounds that the damages sought to be recovered in the principal suit were unliquidated and unascertainable in a given amount, and further that garnishment process was being used as a means of coercion, and of preventing defendant from carrying on its business incident to war activities. In substance plaintiff's declaration alleges defendant breached its contract to pay commissions to plaintiff for sales of its metal cleaning compound, which sales were to be ‘developed’ by plaintiff, and payment of commissions were to continue during the life of such business. The pertinent portion of the garnishment statute reads: ‘* * * that the principal defendant (naming him or them) is justly indebted to the plaintiff on such contract, judgment, decree or transcript, in a given amount, over and above all legal set-offs, and that the plaintiff or affiant is justly apprehensive of the loss of the same, unless a writ of garnishment issue * * *.’ Comp.Laws 1929, § 14857 (Stat.Ann. § 27.1855).

If, as in the instant case, the amount of damages sought by a plaintiff has not been previously adjudicated, it is a prerequisite to garnishment that such damages must be ascertainable in amount by a standard referable to the contract itself. Roelofson v. Hatch, 3 Mich. 277. The trial court stated the rule to be as above noted, and in denying defendant's motion to dismiss the garnishment proceeding the trial court held there was compliance in the instant case with the stated requirement. Notwithstanding appellant's contention to the contrary, the trial judge was correct in his holding.

Roelofson v. Hatch, supra, was an attachment suit, but the pertinent legal principle was quoted with approval in a much more recent decision wherein we upheld garnishment proceedings which were challenged on the ground that plaintiff's damages were unliquidated and could not be definitely computed by a standard referable to the contract. See Old Ben Coal Co. v. Universal Coal Co., 248 Mich. 486, 227 N.W. 794, 796. In this case, which was a suit for damages for breach of contract, we quoted approvingly from the Roelofson decision the following: “* * * there are many contracts where although the damages are not liquidated in the contract, yet by well established rules of law they are capable of being ascertained definitely upon proof of the facts, and to hold, that in all this class of cases, the plaintiff is debarred of this remedy [of garnishment], would be to defeat, in a great measure, the purposes sought to be secured by its enactment.”

In the instant case no question is raised as to the sufficiency of the affidavit in consequence of which the writs of garnishment were issued. Instead, the question is whether or not plaintiff's cause of action as set forth in his declaration is one in which the damages claimed are ascertainable by a standard referable to the contract, the breach of which gave rise to this suit. In the opinion of the trial judge, filed incident to denial of defendant's motion, the contents of the declaration are accurately set forth and more fully than hereinbefore indicated. We quote: ‘Plaintiff's action is based upon an express contract as embodied in a letter dated June 30, 1936, and the subsequent agreement of October 14, 1936, that plaintiff obtained or procured from the Ford Motor Company a contract for the sale of defendant's products; that in his agreement with the defendant the agreed commissions on the sale of its product was provided as not less than 15% but that upon receipt of the first order from the Ford Motor Company in 1937, it was agreed between Charles A. Campbell, president of the defendant corporation, and plaintiff, that his commissions shall be on the basis of 20% of the gross sales to the Ford Motor Company, and that such arrangement continued during the intervening years; * * * that he received from defendant during the years 1937 to December, 1941, commissions totalling $59,140; that on November 29, 1941, he was informed by the defendant by telegram: ‘This is to advise that your services as representative of Solventol Company are terminated as of this date. Solventol Chemical Products, Inc., C. A. Campbell.’; that the breach of contract on behalf of the defendant rendered it impossible for him to further perform and alleges that the value of said contract to him is in the sum of $100,000. * * *

In his opinion the trial judge further stated: ‘The pertinent clause in sales agreement, Exhibit A, upon which plaintiff relies, provides: ‘It is understood that should you develop metal cleaning business from any of the above listed concerns (which included the Ford Motor Company) that your commission will remain intact as long as those companies continue to use the products which you have established the sale of.’ And in Exhibit B: ‘Further, we wish to assure you that it is our intention should any business be derived from Ford Motor Company on metal cleaning compounds, that we intend to consider you as our direct representative and pay you the commissions as previously agreed upon during the life of such business.’'

We are of the opinion that the ruling of the trial judge is sustained by our former decisions and that this phase of the present appeal is controlled by Old Ben Coal Co. v. Universal Coal Co., supra. There, as here, the amount of damages which plaintiff would be entitled to recover under his declaration could not be ascertained alone from the contract which plaintiff claimed the defendant had breached; but it could be determined by competent proof under the declaration and by a standard ascertainable from the contract.

The phrase that the recoverable damages must be ascertainable in amount by a ‘standard referable to the contract itself’ does not mean that every essential for computing damages must be found in the words of the contract, and courts have not so construed it. Instead it has quite universally been held that it is sufficient if, in the light of the terms of the contract, ‘the damages claimed were susceptible of definite ascertainment by testimony.’ Showen v. J. L. Owens Co., 158 Mich. 321, 335, 122 N.W. 640, 645,133 Am.St.Rep. 376. In the cited case plaintiff's suit was primarily for the recovery of damages alleged to have resulted from defendant's breach of its contract to furnish plaintiff for resale threshing machines guaranteed by defendant ‘to be free from inherent and mechanical defects,’ and plaintiff alleged the machines were not free from such defects. We affirmed the trial court's refusal to dissolve an attachment and cited numerous supporting cases; notwithstanding it is obvious the amount of damages plaintiff might recover was not disclosed by the terms of his contract, but the standard or scope of recovery was determinable by reference to the contract and the amount of damages was a matter to be adjudicated in the light of competent proof.

In writing for reversal in this instant case, Mr. Justice Sharpe has attempted to distinguish the case of Old Ben Coal Co. v. Universal Coal Co., supra, by stating ‘the price per ton for...