Weick v. Rickenbaugh Cadillac Co., 17900

• Decision Date: 22 October 1956
• Docket Number: No. 17900,17900
• Citation: 134 Colo. 283,303 P.2d 685
• Parties: Frank H. WEICK, Administrator De Bonis Non of the Estate of Harris T. McClure, also known as Thomas Harris McClure, Deceased, Plaintiff in Error, v. RICKENBAUGH CADILLAC COMPANY, a Colorado corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 685

303 P.2d 685

134 Colo. 283

Frank H. WEICK, Administrator De Bonis Non of the Estate of Harris T. McClure, also known as Thomas Harris McClure, Deceased, Plaintiff in Error, v. RICKENBAUGH CADILLAC COMPANY, a Colorado corporation Defendant in Error.

No. 17900.

Supreme Court of Colorado, En Banc.

Oct. 22, 1956.

Rehearing Denied Dec. 3, 1956.

Anthony F. Zarlengo, Edward E. Pringle, Denver, for plaintiff in error.

Holme, Roberts, More & Owen, Robert E. More, Denver, for defendant in error.

MOORE, Justice.

Plaintiff in error was the administrator of the estate of one McClure. He was plaintiff in the trial court and we will hereinafter refer to him as plaintiff. We will refer to defendant in error as the company.

The action was brought to recover commissions which plaintiff contended McClure had earned while employed as sales manager of the company prior to his death which occurred September 29, 1950. It is admitted by the pleadings that the company tendered plaintiff the sum of $6,023.50 in full settlement of the claim, which sum would pay all commissions due deceased on automobiles sold and delivered prior to September 30, 1950. Plaintiff rejected the tender and contends that the company owes the estate of deceased a commission on the sale of all cars on which orders were taken before September 30, 1950, even though the orders were finally consummated and the cars delivered after McClure's death.

At the close of plaintiff's case the trial court granted a motion made by counsel for the company and entered judgment only for the amount the company admitted to be due McClure, thus holding that the plaintiff had not made out a prima facie case which would justify a recovery of commissions for cars ordered before McClure's death but delivered thereafter. Plaintiff, seeking reversal of the judgment, brings the cause to this Court for review by writ of error.

The first point contained in the Summary of Argument of plaintiff is as follows:

'The Court erred in holding that on the basis of plaintiff's evidence, he had not made a prima facie case entitling him to commissions for cars on which orders were taken before September 30, 1950, and which cars were delivered after his death. Plaintiff's decedent earned his commission when a binding contract for the sale of an automobile was entered into between the defendant and prospective purchaser, and the fact that the time of payment of the commission was postponed until delivery of the car could not work a forfeiture of his commission on cars when delivered because he died before payment became due.'

Exhibit A which was received in evidence was the printed form used by McClure and the salesmen working under him, and was signed by the purchaser of the car. It contained blank spaces under appropriate printed headings adaptable for any type of automobile purchase. In bold face type were the words 'This Order is not Binding Until Accepted by Dealer.' A deposit always was required from a purchaser upon execution of an order by him. The printed form provided, among other things, that the purchaser could cancel the agreement if the price of the car were increased between the date of the agreement and the date of delivery, and, further, if the used car traded in was not delivered to the dealer until the delivery of the new car, the used car should be reappraised, and if the reappraised price were lower than the original allowance, the purchaser might, at his option, cancel the agreement. The agreement further provided that on failure or refusal of the purchaser to complete said purchase for any reason other than cancellation 'the cash deposit may be retained as liquidated damages.'

It is admitted that the total amount of sales on which orders were taken prior to September 30, 1950, in which deliveries of the cars were made after that date, was $257,650.43; that commissions amounting to $15,370.23 were payable on account of said sales; and that 40% of the latter sum would have been due McClure if delivery of the cars had been made in his lifetime.

Questions to be Determined.

First: Did the trial court err in holding that on the basis of plaintiff's evidence he had not made a prima facie case entitling him to commissions for cars on which orders were taken before the death of McClure and the cars were delivered after his death?

This question is answered in the affirmative. Two witnesses were called by plaintiff. Eva Milburn, office manager of the company, testified that she was in charge of the company's books; that McClure was employed as sales manager of the company for many years; that 6% of the sale price of cars was divided among three salesmen and that McClure received 40% of this amount as his commission; that the trade-in value of a used car was deducted from the price upon which the commission was computed; that commissions of the same amount were paid on the sale of used cars; that Exhibit A was the form of contract used by the company in taking orders for the purchase of cars; that McClure worked on a strictly commission basis and had a drawing account against earned commissions; that the accounting procedure was to take the sales from the car invoices and to figure the salesmen's commissions at 6% of the price of the car as set forth on the invoice without including the used car; that commissions were paid on the 15th day of the month following 'the last month of each quarter'; that the several commission accounts were credited once each month with amounts earned; and that the invoice was given 'usually the day of the sale.'

From the testimony of Herbert P. Schumann, a certified public accountant, it is clear that had McClure lived he would have been entitled to receive 40% of $15,370.23 for commissions due on sales of automobiles for which a contract of purchase, or order, had been signed prior to his...