Wheeler v. F.A. Buck & Co.

• Decision Date: 03 January 1901
• Citation: 63 P. 566,23 Wash. 679
• Court: Washington Supreme Court
• Parties: WHEELER v. F. A. BUCK & CO.

63 P. 566

23 Wash. 679

WHEELER v. F. A. BUCK & CO.

Supreme Court of Washington

January 3, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

Action by J. C. Wheeler against F. A. Buck & Co., a corporation. From a judgment for plaintiff, defendant appeals. Reversed.

Preston, Carr & Gilman, for appellant.

Upton Arthur & Wheeler, for respondent.

WHITE J.

This action was brought by the respondent to recover from the appellant the sum of $256.05, with interest at the legal rate from September 9, 1899, for services alleged to have been rendered by the respondent to the appellant in procuring the firm of Schmitz & Anderson to purchase from the appellant a bill of goods; the appellant being a wholesale liquor merchant, doing business in the city of Seattle. The complaint alleged the employment by the appellant of the respondent to act as agent in procuring Schmitz & Anderson to purchase the bill of goods upon an agreed commission of 10 per cent. of the selling price of all liquors in the bill except alcohol and champagne, and 5 per cent. of the selling price of alcohol, champagne, and other goods; that in pursuance of that employment he procured Schmitz & Anderson to purchase the goods; that the compensation agreed upon amounted to $306.05, of which he had been paid $50. The answer denied the employment, but admitted that the respondent procured the sale of a portion of the goods, to wit, $1,934.11 out of $3,891,11, and that he was entitled to a reasonable commission, not greater than the sum of $100, therefor. The case was tried before a jury, who returned a verdict in favor of the respondent for the full amount of his demand. A motion for a new trial was interposed on the following, among other grounds: Excessive damages; error in the assessment of the amount of the recovery, in that the same is too large insufficiency of the evidence to justify the verdict; that the verdict is against law; and error in law occurring at the trial, and excepted to at the time. The motion for new trial was denied, and judgment entered upon the verdict, from which judgment this appeal is prosecuted.

The respondent testified to the agreement as alleged in the complaint, and that he procured Schmitz & Anderson to purchase the goods from the appellant. His testimony as to the making of the contract was corroborated by one Richardson. Appellant's manager, Buck, with whom the respondent testified he made the contract, testified in relation thereto that respondent came to the store of the appellant on the 4th of September, 1899, and said that there were a couple of persons in town going to buy three or four thousand dollars worth of goods, and said, 'If I bring them down, will you give me a commission?' and he (Buck) said, 'Yes.' He further testified that nothing was said as to the amount of the commission; that the two persons were mentioned as Schmitz and Anderson. The testimony of Anderson was to the effect that the respondent solicited him to buy from appellant before he knew Mr. Schmitz, and before the partnership of Schmitz & Anderson was formed, but that he informed respondent that he thought he would buy from Mr Goldstein, but that he had not determined yet; that after the partnership was formed he left the buying to Mr. Schmitz. The partnership between Schmitz and Anderson was formed on September 8, 1899. It appeared from the evidence that Schmitz ordered from Buck & Co. a bill of goods amounting to about $2,000, and afterwards formed a partnership with Anderson, and then increased the original order until it amounted (including bills bought from other merchants, to wit, Schwabacher Bros. & Co., Incorporated, Schwabacher Hardware Company, Harrison & Treat, and Rainier Beer Company, and included in appellant's bill) to $3,891.11. Respondent testified that, prior to the giving of the first order by Schmitz, he had been introduced to Schmitz, and had suggested to him that he buy his bill of goods from Buck & Co. This was denied by Schmitz, who testified that he did not meet the respondent until after he had given the $2,000 order to appellant, and by Buck, who testified that the respondent came into the store while Schmitz was ordering the goods, and he (Buck) then and there introduced Schmitz to the respondent, they not having previously met. The respondent, a short time previous to the formation of the partnership, had urged Anderson to form a partnership with Schmitz. After the partnership was formed, respondent solicited Anderson to have the firm buy their bill from appellant, but Anderson answered that Schmitz would do all the buying in that line for the firm, and the uncontradicted testimony is that Schmitz did do the buying by doubling up the bill which he testified he had ordered from appellant before he formed a partnership with Anderson, and before he knew the respondent. Because of these facts, appellant conceded that respondent was entitled to a commission upon the increase in the order made after the partnership was formed, designating them in its answer as the goods bought by Anderson as distinguished from those bought by Schmitz. Mr. Schmitz testified positively that at the time he gave the $2,000 order he did not know the respondent, and that the respondent had nothing to do with procuring either that order or the increased order. He further testified that the $2,000 order for himself was given several days before he formed a partnership with Mr. Anderson, and that while giving the order the respondent came into the appellant's place of business, and he was there introduced to him for the first time. The final order was given on the 9th of September, 1899. During the cross-examination of Mr. Schmitz, a paper writing to the following effect was produced by the respondent, and designated 'Exhibit C': 'Seattle, Wash., Sept. 12th, 1899. This is to certify that we purchased our goods from F. A. Buck & Co. It was through Mr. E. Chilberg that we were introduced to Mr. J. C. Wheeler, who in turn took us to the above firm. H. P. Anderson. A. F. Schmitz. Witnesses: W. T. Moore. F. Dimmock.' The respondent testified that Mr. E. Chilberg, mentioned in Exhibit C, was the person who introduced him to Anderson, and made known to him that Anderson contemplated going to Alaska with a stock of liquors, and that he was not introduced to Anderson by Chilberg until after he had made his arrangement with the appellant. It was also shown that Chilberg was a friend and acquaintance of Anderson's. Anderson testified that Mr. Wheeler had been around quite frequently, and wanted him to sign a paper similar to Exhibit C, but that he refused, and told him if there was any commission coming it was to Mr. Chilberg; that he was the man who was actually entitled to it; that he told Mr. Chilberg the circumstances; that Mr. Chilberg went home, and wrote out Exhibit C; that Anderson and Wheeler looked it over, and he (Anderson) signed it; that he signed it through his acquaintanceship with Chilberg, supposing that he would enable Mr. Chilberg to get a commission. On cross-examination, he testified as to his reasons for signing it, and the circumstances of the signing, and he further testified as to the circumstances and conversations about signing it, and reasons for Mr. Schmitz signing it. In rebuttal, Mr. Chilberg was called as a witness for respondent. He testified that Anderson denied that Wheeler was entitled to anything, and that the writing was prepared with the view that, if any commission was paid, he (Chilberg) should be entitled to some of it on account of introducing Mr. Wheeler to Mr. Anderson. The paper was signed on the steamship, in the hurry of departure. No representative of appellant was present when it was signed, and the appellant knew nothing about the signing of this paper. Mr. Chilberg and Mr. Moore both testified for the respondent in rebuttal as to the circumstances of the signing of the paper by Mr. Schmitz. This paper could not have been introduced as evidence against the appellant, and was admissible only as tending to contradict and impeach testimony of Schmitz and Anderson. Yet it is fair to presume that it greatly controlled the action of the jury. Upon cross-examination of the witness Schmitz, counsel for the respondent produced Exhibit C aforesaid, and examined the witness in relation thereto. On redirect examination, counsel for appellant undertook to inquire from the witness as to the circumstances surrounding the execution of the paper, and, after many objections and adverse rulings by the court, finally obtained a partial explanation of the surrounding circumstances, and then asked the following question: 'Did you know at the time you signed that paper that it contained anything relating to the subject of the instrumentality through whom--the persons through whom--you made the purchase from Buck & Co.?' This question was objected to by counsel for respondent as leading, immaterial, irrelevant, and cross-examination of his own witness. The objection was sustained. Counsel for appellant then questioned the witness as follows: 'Did you know, at the time you signed that paper----' At this point the court interrupted, and ruled that no further question should be asked the witness upon that point, saying that if it desired to put any further questions on any other subject it might do so; otherwise, the witness could stand aside. 'Any further questions in reference to that paper the court will rule out.' This action of the court appellant assigns as error. This signed statement was not in the nature of a contract in writing. It was a mere statement or declaration of the witness, made at another time, different from, and inconsistent with, that made by him on the witness stand. 'Since such attempted...