Travis v. Means

• Citation: 214 S.W. 239
• Decision Date: 26 May 1919
• Docket Number: No. 13241.,13241.
• Parties: TRAVIS v. MEANS et al.
• Court: Court of Appeal of Missouri (US)

214 S.W. 239

TRAVIS v. MEANS et al.

No. 13241.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be officially published."

Action by S. J. Travis against W. L. Means and others. Verdict for defendants, and from an order granting a new trial defendants appeal. Affirmed.

See, also, 192 S. W. 119.

E. E. Aleshire and Sharp & Sharp, all of Kansas City, for appellants.

Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent.

ELLISON, P. J.

This action is on an account for commission at 6 per cent. on sales of pianos made by plaintiff for defendant. Trial in the circuit court resulted in a verdict for defendant. Plaintiff filed a motion for new trial which the court sustained, "on account of error in instructions," and defendant appealed from that order.

The contract engaging plaintiff to make sales and agreeing to pay a commission of 6 per cent. and certain expenses, including advertising, contained this provision:

"In event not enough cash is taken in to pay advertising expenses and commission, you (plaintiff) are to wait for your commission until enough cash is taken in at the sales made to cover advertising expenses and commission."

There was evidence showing that various amounts of money had been taken in, but we may concede, for present purposes, that there was evidence tending to show that enough had not been taken in to pay for advertising and the commission which plaintiff was to receive. Notwithstanding this concession, we do not think the contract should be interpreted as meaning that plaintiff was not entitled to any commission until sufficient money had been received to pay all of it. That view would permanently prevent plaintiff getting a commission on sales, even though the money received lacked only $1 of the amount of the commission earned. That is not the natural meaning, and it seems to us is not the meaning the parties thought should be given it.

Yet instruction No. 2 for defendant directed the jury to find in toto for defendant if they believed that sufficient money had not been taken in to pay the commission and advertising. We think the trial court was justified in granting the new trial on account of that instruction if nothing else.

In considering the propriety of the court's action we must keep in mind that the motion for new trial was sustained. An appellate court will hesitate to interfere with the trial court's discretion where...