Tete v. Lanaux

• Decision Date: 01 November 1893
• Docket Number: 11,253
• Citation: 14 So. 241,45 La.Ann. 1343
• Court: Louisiana Supreme Court
• Parties: AUGUSTE TETE v. D. LANAUX, EXECUTOR

14 So. 241

45 La.Ann. 1343

AUGUSTE TETE v. D. LANAUX, EXECUTOR

No. 11,253

Supreme Court of Louisiana

November 1, 1893

APPEAL from the Civil District Court for the Parish of Orleans King, J.

Albert Voorhies, for Plaintiff and Appellant.

Chas F. Claiborne, for Defendant and Appellee.

OPINION

WATKINS J.

Plaintiff sues for an unpaid balance of salary as due him under a written contract with the deceased, on the theory that his employment was that of a clerk, or servant, at a certain fixed annual salary of $ 3000, payable in monthly instalments in advance -- he having been sent away before the expiration of his term of service, and without any serious grounds of complaint.

To his demand the executor interposes two defences, to-wit:

1. That prior to the time plaintiff had entered upon the discharge of the duties imposed upon him under the stipulations of the written agreement between the parties, as renewed on the 2d day of July, 1892, Pierre Lanaux, obligee therein, departed this life on September 6, 1892, and that for that reason his claim is not founded in law.

2. That the existence and continuation of said contract -- if it were at date of Lanaux' death in operation, and plaintiff in the active performance thereof -- depended, in fact and in law, as well as in contemplation of the respective parties, upon both of them being in existence during its full term, and that the death of the obligee terminated said contract and put an end to the rights and obligations of both parties thereto, owing to the nature of the contract and the physical impossibility of its execution.

On the trial there was judgment in favor of the defendant, and the plaintiff has appealed.

The contract, provisions of which plaintiff seeks to enforce, is couched in the following terms, and same is reproduced as the best method of disclosing the salient points in controversy.

"NEW ORLEANS, July 1, 1890.

"AGREEMENT.

"It is hereby agreed between Pierre Lanaux, party of the first part, and Auguste Tete, party of the second part, as follows, to-wit: The party of the first part hereby employs the party of the second part as a sugar broker for the period of one year, from July 1, 1890, to effect the sales of all sugars and molasses that may be consigned to him, the party of the first part; and in lieu of the usual commissions allowed on such sales, to pay the party of the second part a fixed salary of three thousand dollars ($ 3000), payable two hundred and fifty dollars ($ 250) per month. And the party of the second part, in consideration of said salary to be paid to him by the party of the first part, as aforesaid, agrees to effect such sales and to exert all his personal influence to promote the interest of said party, and to effect no sales of sugar and molasses, except those consigned to him (the party of the first part). And the said party of the second part further agrees to write all letters concerning sugar and molasses market of said party of the first part, and to make out all account sales of sugar and molasses in all said transactions made by him for said party of the first part.

"Signed in duplicate on the day of the month and year above written.

(Signed)

"PIERRE LANAUX.

"AUG. TETE."

The parties place upon this contract two altogether different interpretations, thus introducing into this litigation the element of uncertainty that it becomes our duty to resolve. And it must be admitted that the question is not free from serious doubt, notwithstanding the lower judge held with the defendant.

The case must depend upon the capacity in which the parties respectively covenanted that the plaintiff should act -- whether as broker, clerk, or agent -- the plaintiff contending that his engagement was that of a clerk, while the contention of the executor is that he was employed as a broker, or agent -- different principles of law appertaining to each.

The language of the contract is, that "the party of the first part hereby employs the party of the second part as a sugar broker for the period of one year," etc., and if that were all the stipulation it contained on the subject there would be no difficulty in solving the issue tendered. But the contract continues as follows, viz.: "to effect sales of all sugars and molasses that may be consigned to him, party of the first part; and in lieu of the usual commissions allowed on such sales, to pay the party of the second part $ 3000, payable $ 250 per month." And it further provides that in consideration of said salary the party of the second part " agrees to effect such sales and to exert all his personal influence to promote the interest of said party (of the first part) and to effect no sales of sugar and molasses except those consigned to him (the party of the first part)." And what, possibly, is the most significant provision of the agreement in this respect is that it declares that "the said party of the second part further agrees to write all letters concerning the sugar and molasses market of said party of the first part, and to make out all account sales of sugar and molasses in all said transactions made by him for said party of the first part."

A clerk is one who hires his services to an employer at a fixed price under a stipulation to do and perform some specific duty or labor which requires the exercise of skill. "The broker is he who is employed to negotiate a matter between two parties, and who for that reason is the mandatory of both." R. C. C. 3016.

The leading and essential difference between a clerk and a broker is that the former hires his services exclusively to one person, while the latter is employed to make bargains and contracts between other persons in matters of trade, commerce and navigation. For the services of the former there is a fixed stated salary, while for those of the latter, a compensation, commonly styled brokerage, is allowed. Story's Agency, Sec. 26.

Putting the contract under consideration to this test, and what is the result?

The very first stipulation of the agreement is that the obligor was to effect the sales of all sugars and molasses that may be consigned to the deceased, and no other, and for his services was to receive a stated salary. His agreement bound him to act for and represent but one party, and "to exert all his personal influence...