Wayne Pump Co. v. Harrison

• Court: Alabama Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Wayne Pump Co. v. Harrison, 23 So.2d 392, 247 Ala. 186 (Ala. 1945)
• Decision Date: 10 May 1945
• Docket Number: 4 Div. 356.
• Parties: WAYNE PUMP CO. v. HARRISON.

23 So.2d 392

247 Ala. 186

WAYNE PUMP CO. v. HARRISON.

4 Div. 356.

Supreme Court of Alabama

May 10, 1945

Rehearing Denied July 26, 1945.

Further Rehearing Denied Oct. 11, 1945.

Powell, Albritton & Albritton, of Andalusia for appellant.

E O. Baldwin, of Andalusia, for appellee.

BROWN Justice.

General assumpsit by the appellee against appellant on the common counts, on account and for work and labor done. Defendant pleaded the general issue in short by consent with leave to give in evidence any matter that would support special defenses if pleaded, with like leave to the plaintiff to reply.

The work and labor performed by the plaintiff was as sales agent of the defendant's products and goods in the territory covering part of South Alabama and North Florida under special contracts for the years 1935, 1936 and 1937. Compensation for services, as provided in said special contracts, was commissions on sales ranging from ten to twenty-five per cent on designated articles, eighty-five per cent of which was payable when orders were taken and delivered to the home office and accepted by defendant, and fifteen per cent was designated as reserve commissions. The appellant kept the books and made monthly reports to the appellee. Payments of commissions by the appellant to the salesman were to be made four times a year and the reserve commissions were payable at the end of each year where the accounts of the customers out of which said commissions arose had been liquidated.

The evidence in the case consisted of the testimony of the plaintiff; the several statements of account which he received, two of which were missing; the depositions of E. J. Gallmeyer, General Sales Manager and Vice President of the defendant corporation; Forrest A. Roe, Account Manager of the Accounting Department of the defendant corporation; E. H. Seaman, 'Legal Correspondent Assistant Claim and Commission Manager and Manager of Collection Department' of the defendant corporation; the several contracts relating to the plaintiff's employment, and statements and duplicate statements of accounts made by the defendant to plaintiff in the course of said employment.

The plaintiff's testimony goes to show that the defendant was indebted to him in the sum of $1,547.54 on open reserve account and $61.44 on current account when defendant terminated the contract of employment; that the accounts of all customers on which reserve commissions were unpaid, except possibly one, were liquidated by February 2, 1940, and that defendant made up a statement showing a detailed status of the account and sent same to plaintiff as a that date. The evidence, however, was susceptible to adverse inferences developed on cross-examination, and by defendant's evidence, presenting a case for jury decision. Therefore, the affirmative charge for the defendant, requested on the ground that the evidence did not show that the accounts were due and payable before suit was brought, was properly refused. Carrico & Son v. J. E. Duval Printing Co., 219 Ala. 65, 121 So. 59; Standard Lumber Co. v. Hosmer, 225 Ala. 321, 146 So. 825.

The contract of 1937 between the plaintiff and defendant was terminated by the defendant by notice given as provided in the contract, which stipulated, that 'Upon termination of this contract by notice or limitation no final settlement or payment of commissions shall be made by the company to or with the salesman until the salesman has fully and finally accounted for and paid and delivered to the company all money, records, property and things of value, due from him or to be delivered by him to the company.'

Appellant contends that this provision in the contract was breached by the plaintiff in not accounting for, paying and delivering to the company all money, records, property and things of value due from him or to be delivered by him to the company. This alleged breach constituted a special defense, the burden of proof resting upon the defendant to sustain this defense. To support this defense, the appellant insists that the evidence shows the defendant had in his possession at the time the contract was terminated certain computing gasoline pumps and equipment on which there was a net balance due from the customer of $446.26, and cash in the amount of $67.84 from sale by appellee of appellant's property, which he did not return or pay to defendant.

The evidence shows that said gasoline pump equipment was repossessed by the plaintiff as the agent of the defendant and by its express authority, before the termination of the contract, and stored in Andalusia as its property, and that the writ of attachment issued at the commencement of the suit was levied upon said property as the property of the defendant. The defendant by its unqualified appearance, and the plaintiff's failure to give bond, discharged the levy, confirming the ownership of the property. Code 1940, Tit. 7, § 849. The notice and demand made by defendant prior to the issuance of the attachment for the return to it of said property required the plaintiff to prepay the carrying charges, and the evidence shows that the plaintiff was under no obligation to make such payment to effect delivery of said property. The levy of the attachment issued on the plaintiff demanded at the commencement of the suit on said property was authorized by law, and this fact could not be pleaded as a defense to plaintiff's action.

As to the $67.84 the plaintiff testified that, when he was at the general office of the defendant in Fort Wayne, Indiana, and went over the accounts with defendant's manager, his tender of this money was refused. The plaintiff's testimony in this respect is not contradicted.

The special defense was not sustained by the evidence and the affirmative charge requested on that theory was well refused.

Evidence was offered by the parties as to the status of accounts running through the entire employment for three years and the question of the amount due was by the trial court left to the jury, and we are unable to affirm, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738.

Affirmed.

GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.

On Rehearing

PER CURIAM.

The contract did not stipulate that delivery would be made to defendant at any certain place or in any certain manner. If plaintiff had in his possession at Andalusia the article taken up at the instance of defendant, there was no provision that plaintiff would do any certain act with reference to it except deliver it to defendant. Defendant could have received delivery at Andalusia, through an agent, so designated, and thereby plaintiff would have discharged his duty. But defendant did no such act and did not offer to do so. The contract did not require plaintiff to go to the trouble and expense of preparing it for shipment, and carting it to the railroad, nor of paying any of such expense of delivery.

When plaintiff...