Wittkowski v. Harris

• Decision Date: 01 October 1894
• Citation: 64 F. 712
• Court: U.S. District Court — Western District of North Carolina
• Parties: WITTKOWSKI v. HARRIS et al.

64 F. 712

WITTKOWSKI v. HARRIS et al.

United States Circuit Court, W.D. North Carolina.

October, 1894

L. M Scott and Dillard & King, for plaintiff.

Mebane & Scott, P. D. Johnston, and James E. Boyd, for defendants.

DICK District Judge (charging jury).

The defendants concede that the paper writing styled 'Public Notice' was executed by them, and duly constituted the plaintiff as their sole factor to make sale of their manufactured tobacco in the Australian provinces and New Zealand. If no further express contract had been made by the parties, the law would have implied a contract that the factor should employ reasonable effort, in the market of consignment, to make a fair, honest, and profitable sale of the tobacco, and faithfully and promptly render a full and correct account of his dealings and remit to defendants net proceeds of sale, after deducting proper expenses, cash advancements, and such commissions as were usually retained by factors for similar services in the markets of sale. Both parties insist that there was a further express contract made by them before the tobacco was manufactured and shipped to Australia, but they very materially differ as to the terms of such contract. As the parties do not agree as to the express terms of their contract, and the evidence is conflicting, you will have to ascertain the terms from the preponderance of the evidence introduced by the respective parties. In order to assist you in performing your difficult and important duty, I will endeavor to give you a brief outline of the contentions and views of the parties, as they appear in the pleadings, the evidence, and the argument of counsel.

The plaintiff insists that the express contract contained the following terms of positive agreement: First. That he was to be the sole factor of the defendants for the sale of their manufactured tobacco in the Australian provinces and New Zealand, and was to receive, by way of compensation, 5 per cent. commissions on proceeds of sale,-- 2 1/2 per cent. del credere commissions, and 2 1/2 per cent. for necessary expenditures and cash advancements which might be made to defendants in the course of dealings. Second. That the tobacco was to be manufactured at the lowest possible cost price, and so invoiced to him at the port of consignment; was to be, in quality, manner, and style of manufacture, in conformity with certain furnished samples, under express directions given by him to Alex. Wells, the foreman agreed upon by both parties. The plaintiff fully advised the defendants, and they clearly understood, that no other kind of manufactured tobacco could be successfully brought into competition with other brands of American tobacco which had already acquired high reputation in the markets of Australia and New Zealand. Third. That the first shipment of tobacco was to be of the amount, kind, and quality as set forth in a written agreement of defendants drawn up and signed for them by their bookkeeper, Hurdle, and delivered to plaintiff in their presence, and with their approval and consent. It was at that time further agreed that no other shipment was to be made until the plaintiff had tested the Australian markets, and had given express order for further manufacture and shipment; and defendants expressly agreed to sustain all loss that might be incurred by the dangers of the sea,-- by incidental damages to tobacco on the voyage, and by failure of successful competition in the markets of Australia after reasonable exertions had been made by plaintiff; and he was only liable for the usual legal responsibilities of an honest and diligent commercial factor except when he had sold on credit under his del credere commission. Fourth. That at the time when the contract was made there was no agreement for any cash advancements by the plaintiff, but at a subsequent time, when the first lot of tobacco was nearly manufactured for shipment, plaintiff agreed, as a favor to defendants, and at their urgent request, to advance f1, 000, and gave them a letter of credit on a bank in London, which enabled them to draw for that amount; and they expressly agreed to pay 10 per cent. interest on such cash advancement, which rate of interest was allowable by the laws of Australia, the place where the money was to be repaid out of the proceeds of the consigned tobacco. Fifth. That he did not order the manufacture and shipment of the second lot of tobacco consigned to him, in Australia, in a few weeks after the first shipment; and he did not authorize the second draft of L1,000 drawn by defendants on the bank in London, as he had no funds in bank to meet such draft, and he would not have honored and paid the same, except upon the earnest and urgent request of defendants contained in the letter introduced in evidence by plaintiff, showing that they knew that they had no authority to draw, and agreeing to pay additional compensation for advancement. Sixth. That the two shipments of tobacco consigned to plaintiff were invoiced at a largely excessive cost price, and were not of the quality, manner, and style of manufacture agreed upon; and, by reason of their excessive invoiced cost price and inferior quality, they were not suitable to be brought into successful competition with other, cheaper, and better manufactured American tobacco, of long-established brands, which had acquired readiness of sale in the markets of Australia and New Zealand. That plaintiff, in a few days after consignments were received, fully informed the defendants by letter (a copy of which was shown in evidence) that the tobacco was not manufactured in accordance with the terms of their contract, was not suitable for ready and remunerative sale, and that he would hold the same subject to their order, upon repayment of cash advancement and interest. That defendants, in a subsequent letter in reply, requested him to make sale of the tobacco to the best advantage, and save them from as much loss as possible. That plaintiff at once undertook to comply with such request, and made the most careful and diligent efforts, by frequently traveling thousands of miles in trying the various widely separated markets of Australia and New Zealand. Seventh. That defendants, without the knowledge and consent of plaintiff, and in gross violation of their contract with him, sold or consigned large shipments of manufactured tobacco to other persons in Australia and New Zealand; and he insists that under the terms of said contract he is entitled to recover 5 per cent. commissions on the proceeds of sale realized by defendants from such shipments. Eighth. That, although plaintiff has declared in this action upon a special contract made previous to the manufacture and shipment of the tobacco by defendants, he is still entitled to offer evidence of the acts and correspondence of the parties tending to show subsequent changes and modifications of such contract; and, if the exact terms of the original contract are not fully established to the satisfaction of the jury, he may yet recover judgment for any relief to which the facts alleged and proved entitle him, although not demanded in his prayer for relief.

Defendants' view of the case: The defendants insist, by way of defense and counterclaim: First. That the paper writing offered in evidence by plaintiff, purporting to be signed by them, is no part of their contract, as it was written, under the sole direction and dictation of plaintiff, by their bookkeeper Hurdle, and was by him signed in their name and delivered without their knowledge and assent, and without any authority vested in him. Second. That the terms of the contract between the plaintiff and defendants were not in writing, but consisted of oral agreements definitely made and mutually understood by the parties. They were made with the view of establishing a continuous trade in tobacco in the Australian provinces and New Zealand for the mutual benefit of the parties, and was to be kept up by frequent consignments of tobacco to the plaintiff, manufactured in accordance with certain directions given by him, as he alone had knowledge of the kinds of tobacco that could be readily and profitably sold in such markets. Third. That the plaintiff carefully examined the large stock of leaf tobacco in the factory of defendants, and said that the material was of very fine quality, and if properly manufactured, in accordance with his directions and the furnished samples, it would be remarkably well suited to the Australian markets, and would, under his management and sale, net defendants 56 cents per pound; and he agreed to guaranty cost price of 40 cents per pound, which, at his suggestion, had been carefully made, and was expressly agreed upon in the contract. That to secure the proper manufacture of the tobacco the plaintiff went to Richmond, Va., and procured the services of Alex. Wells as manager, and recommended him to defendants as a very intelligent and skillful manufacturer, who had, by long experience, acquired the peculiar knowledge that qualified him to manufacture tobacco suitable for the Australian markets. That defendants employed Mr. Wells as manager at a large salary, and gave him entire charge of the manufacture of the tobacco to be shipped to plaintiff, and, at considerable expenditure, purchased new machinery which he suggested and required. Fourth. That the contract contained no express stipulations as to rate of commissions to be paid plaintiff for negotiating sales, but it was fully understood between the parties that the plaintiff would obtain satisfactory compensation for his services out of the profits that would be realized by him over and above the price which he assured defendants that they would receive from the sale of the tobacco. Fifth. That the...