193 Iowa 794 | Iowa | 1922
The petition is in three counts. In the first count, plaintiff claims commissions under employment of October 29, 1914, for the period to and including July 31, 1915, in territory in and around Osceola. The second count claims for the same period, but under a contract made with the Babb-Murray Auto Company, which plaintiff used as a trade name. The third count is for the year ending July 31, 1916. Each count alleges that the added commissions could only be determined, if they were earned, at the end of the year, and that the same were forwarded by the Ford Motor Company to the defendant, to be paid to the plaintiff; that defendant has retained and ajípropriated the same.
The contracts are between the Ford Motor Company, as party of the first part; defendant, Herring Motor Company, as party of the second part, and known as the limited agent of first party; and plaintiff, as party of the third part, who is the sublimited agent of the first and second parties.
In due time, defendant filed its motion to transfer the case to Polk County for trial, which was overruled. This will be referred to later in the opinion.
The defendant answered in general denial, but admitted that the parties signed the written contract before referred to, but alleged that said instrument did not contain the full and complete agreement, but that, at the time of the signing thereof, and as a part of it, and for the same consideration, as an amendment and addition thereto, the parties entered into a further and additional agreement, as shown by Exhibits 1 and 2, as follows:
“Exhibit 1.
“I hereby specifically agree to release the Ford Motor Co., from any and all obligations to pay me rebate money which may*797 be earned under this contract in accordance with lines 159 to 172 inclusive, and that said contract may be, and is so amended, and that I will make no claim for payment of any such rebate earned by me exclusively from the limited agent, Herring Motor Co., Des Moines, Iowa. This agreement is, attached to and made a'part of contract dated October 29th, 1914.
“Babb-Murray Auto Co.,
“A. M. Babb, Sublimited Agent.”
“Exhibit 2.
“I hereby specifically agree to release, and do release the Herring Motor Co., from any and all obligations to pay me rebate money which may be earned under my contract with themselves and the Ford Motor Co., of date October 29th, 1914, and said contract is hereby amended in this respect as between myself and the Herring Motor Co. I further authorize the said Herring Motor Co., to collect and receipt for any bonus earned under said contract and to indorse any drafts issued in payment of same.”
This is signed the same as Exhibit 1. A like plea was made by defendant as to the other two counts of the petition, and two other sets of releases like the foregoing were set out. Division 4 of the answer claimed that the contract sued on was not all of the agreement between the parties; that the exhibits before quoted wrere a part of it. Division 5 of the answer asked a reformation of the contract, so as to add thereto a provision that defendant was to have the added commissions sued for in this case. Defendant moved to transfer to the equity docket the issues raised in Divisions 1, 2, 3, and 5 of the answer. This was done, and reformation was denied, and the trial on issues raised by Division 4 of the answer was continued for trial as a part of the law action. An appeal was taken, and the decision affirmed. Babb v. Herring Motor Co., 190 Iowa 814.
In this connection, it may be proper to say that it appears that, for the year prior to the two years now in controversy, plaintiff had been selling cars under the same arrangement, and had signed releases like the foregoing; but notwithstanding this, defendant had paid plaintiff the extra commissions for such
“We enclose herewith a form of release of rebate which we ask you to please sign and return to us at once. You will please understand that the execution of this release does not in any way release us from paying you the rebate which you will earn according to your contract, but does permit the Ford Motor Company to pay to us as fast as earned upon our volume of business the earned rebate. This in turn will permit us to settle with you direct, promptly as fast as you have earned any rebate. This will avoid the long delays which we have heretofore had in securing for our dealers the rebate which their volume of business has earned them. We know you will not hesitate to accept us for this rebate and we promise to let you have our check just as fast as your volume of business entitles you to such bonus. We repeat that we would like you to sign and return this release to us at once so that we may get this plan in operation and we also repeat that you are in no way releasing us from our obligation of paying to you the amount of bonus which your volume of business earns you under your contract and we further agree to pay such bonus as fast as earned.
“Yours very truly,
“Herring Motor Car Company
“[Signed] C. L. Herring.”
“P. S. We are enclosing six of these agreements and you will please sign 2 for each territory. Osceola, Woodburn and Murray. ’ ’
It appears that the word “rebate,” as used in the letters, refers to what has been called added or extra commissions. The defendant further alleged that the only consideration received by defendant in connection with the transaction, and for the services rendered by it, was the amovmt to be paid to it as additional commissions or relíate, mentioned in Paragraph 30
A voluminous reply of fourteen pages in the abstract was filed by plaintiff, the substance of which is that all allegations in the answer are denied which are inconsistent with the allegations of plaintiff’s petition, and he denies that he assigned the added commissions to the defendant, but asserts that, if it should be so held, then there was no consideration, and that the Ford Motor Company, the principal of plaintiff and defendant, had no knowledge thereof, and did not consent thereto; that plaintiff ivas not employed by this defendant, but only designated by it; that he had built up a large business in Ford autos, and that the contract providing for additional compensation, as his sales increased, was to make it an incentive for him to do as much business as possible, which provision is for the benefit of the Ford Motor Company, as well as for plaintiff; that the contract between the three parties provided that ho interest therein could be assigned without the written consent of the Ford Motor Company, and the contract could not be changed by independent or outside agreement; that the releases relied upon by defendant were not signed by anyone except plaintiff, and could not vary the original contract between the three; that the written contract between the three provides:
*800 “It is agreed that such added commissions shall not be paid to second party [defendant] until the second party shall have furnished satisfactory evidence to first party [Ford Motor Company] that all commissions and added commissions due or owing, or which might later become due or owing the sublimited agent under second party, have been fully paid, or until satisfactory arrangements are made with the first party to insure sublimited agent’s being paid the commissions, and added commissions which may be due, or become due them under their respective contracts. ’ ’
It is also alleged that such provisions refer to the claims of plaintiff in this case. Though it is not entirely clear from the record, we understand plaintiff to plead that the provision just quoted was in another contract between the Ford Motor Company and defendant herein, and that plaintiff is not able to set out a copy thereof, because it is in possession of defendant. It is not very material, perhaps, whether this provision is in a separate contract or not.
The reply further alleges that the releases were not turned over to the defendant for the purpose of releasing defendant or the Ford Motor Company from paying plaintiff the added commissions, but were only turned over to defendant for the purpose of getting the matter in shape, so that the Ford Company would pay the added commissions to defendant as they accrued, so that defendant could, in turn, pay them to plaintiff, and so that defendant would not have to wait until the end of the year before the money could be received by it; that plaintiff’s said added commissions did not accrue as soon as the added commissions due the defendant, for the reason that plaintiff’s territory was smaller, and his sales were not so large; and that, so that the defendant could get the added commissions before the year expired, the said defendant verbally requested this plaintiff to sign the papers, so that the same could be turned over to the Ford Motor Company, saying that it would pay the added commissions due such defendant as soon as they matured; and that such defendant stated and represented to the plaintiff that, in signing said papers, he was not in any way releasing his added commissions, was not transferring the same to this defendant,
1
The original contract between the three parties is contained in sixteen pages of the abstract. It is too long to set out in full. Though it may prolong the opinion, it seems necessary to set out some other provisions therein, in addition to those already mentioned, to get a correct understanding of the situation and of the purpose for which the releases were signed, and of their- effect. It provides, among other things, that the Ford Company and defendant reserved the right to each to make direct sales to customers in the territory assigned to plaintiff as sublimited agent, in which case a smaller commission was to be paid plaintiff. This provision was not to apply to sales of parts or accessories which were otherwise provided for. It further provides that plaintiff should transact his business with first party through defendant, make advances to defendant,
It appears that defendant’s territory consisted of a large number of counties, and it sold Ford parts and repairs to Ford dealers, and received therefor a commission from the Ford Company. In addition to this, it appears that defendant handled tires, tubes, oils, etc., which it did not get from the Ford Company, which brought defendant in touch with all such dealers, and gave defendant an advantage in dealing with them. Evidence for defendant shows that it handled accessories for all cars, and sold them to 10,000 dealers, while it only had 125 Ford dealers; that this had 'nothing to do with the Ford business; that defendant got a profit on these matters, ranging from 5 to 13 per cent; that the purpose in separating into three contracts was to reduce plaintiff’s commissions; that, for the year 1913-14, plaintiff was required to execute three contracts, covering territory adjacent to Osceola, Murray, and 'Woodburn, for the purposes just stated. As we understand it, the Ford Company pays to defendant a 15 per cent commission, and then added commissions, depending upon the amount of business done in defendant’s territory. The amount of commissions to be paid to the sublimited agents operating under defendant is the same as the commissions to be paid to defendant, and these commissions are to be taken from defendant’s commissions.
“He had some papers there that Avere receipts for added commissions, that he AA'anted me to,sign. I asked him AArhy I should sign those papers, and he said, according to their contract with the Ford Motor Company, they could not get their commissions until the sublimited agent, myself in that case, had submitted a receipt, or they had satisfactory evidence that I A\nuld get the money. They had to shoAV the company that. He said, ‘This is the same thing you signed last year.’ ”
The defendant objected to evidence of the transaction of
“I signed exact copies of Exhibits 1 and 2 both. The papers that I signed in January were mailed to me, and I mailed them back to defendant. Exhibit F is a letter I received January 10, 1914. * * * There came with the letter some papers, releasing the Ford Motor Company, and receipts for additional compensation to the Herring Motor Company. They are the same ones as these exhibits I have just been referring to. # * *' After I received the second letter, I signed the papers referred to in the letter, and sent them to defendant. ’ ’
Plaintiff then offered the two letters of January 10 and 21, 1914, one of which has been before set out. Witness continues, in regard to the conversation with Rockwell as to the contracts in suit:
“I objected to signing these papers, and he said, ‘You signed them for last season and got your added commissions all right, didn’t you?’ I said that I had gotten them. He said: ‘It will be the same this year. We have to have these papers signed, in order to get our added commissions from the Ford Motor Company.’ He did not make any claim that by signing the papers that I ivas turning over these added commissions to defendant, or that they were for their own use, or that they were to keep them. I would not have signed them if he had told me that was the purpose.”
“L told him I hadn’t received my commissions for the last year, and he said: ‘Yon will get them, all right. They never do come along until fall. Never have gotten them until October.’ This was in August. ‘You never have got the added commissions until fall, when all the business is wound up. You will get them in plenty of time,, when the business is wound up for' the season.’ I asked him if it was just the same as the former years, and he said: ‘You will. It is just like it has been.’ He said he had to have a receipt from the sublimited agents to the Ford Motor Company;, before that company would pay to the Herring1 Motor Company the added commissions; and if we would sign those and give them to them now, their volume of business would start added commissions coming back in three or four weeks, to where they would be getting 5 per cent. If we would sign them now, they would have that money to use in the business. He did not, on either of these occasions, make any claim that I was turning them over to them, and that I had no further interest in them. -I would not have signed these last papers if he had made any statement of that kind. After the time 1 signed this last paper, I had talks with Rockwell a number of times about these commissions coming to me. He said matters were slow, and they would come through eventually, as soon as the business was closed up. Afterwards, and in July, 1916, I asked him again about it, and he said he didn’t believe I was going to get it. He said they had not made as much money as they would like to, and they were going to quit anyway that year, and did not lliink he would pay them. I told him it was a*806 funny way to do, not to give a man what he had earned, and told him I was going to turn the matter over to my attorney. No part of the added commissions under these contracts has been paid for these two years. ’ ’
He says he relied on Rockwell’s statements as to what the releases meant, and not what they read. The contracts and releases were all signed at the same sitting, — the contracts first, and then the receipts or releases. He says he had no talk with Mr. Herring when the contracts for the two years 1914 and 1915 and the releases were made. He denies Mr. Herring’s testimony on the subject.
It appears that defendant ceased acting as agent for the Ford Company at about, or soon after, the end of the second sales year in question. We understand appellant to concede that, if the releases were not a part of the original contract, and if the contract was as plaintiff claims, then plaintiff would be entitled 'to recover. The principal contention of appellant seems to be that the evidence offered by plaintiff on this subject, as tending to show what the contract was, was not admissible. We think it was, and we shall briefly state the reasons for so holding, .later in the opinion. The appellant’s objection thereto was raised by objections to the evidence, by motion to direct a verdict, by offered instructions, and by exceptions to the instructions given. Appellant’s motion for a directed verdict was made at the close of plaintiff’s evidence, and was overruled. It was not renewed after defendant introduced its evidence. Appellee contends, citing cases, that, if there was any error in overruling the motion, it was waived.
The trial court instructed on all the theories of the case, as presented by both plaintiff and defendant, saying, in part, substantially this:
That the first question is, What were the contracts and agreements between plaintiff and the defendant and the Ford Company? that plaintiff claims that the written contracts, A, B, and G, were the contracts, while defendant claims that such are not the whole of the contracts entered into; that the jury should consider all the evidence surrounding the parties hereto at, before, and after the signing of the contracts; and that, if
Taking up now briefly the question as to the admissibility of the evidence in regard to the releases. There might be force in appellant’s contention if the releases were considered by themselves, or as a part of the original contracts between the three parties. Defendant was claiming that the original contracts did not express all the agreement. They so pleaded, and they first introduced their evidence on that subject, and their evidence tended to show that the releases were executed in such a manner as that they were a part of the original contract. Thus far, appellant concedes, as it must, that the evidence was proper. It is quite clear that plaintiff had a right in rebuttal to meet this testimony by contradicting defendant’s evidence, and by showing that the releases were not executed at the same time,
Appellant cites Doolittle v. Murray & Co., 134 Iowa 586, 546; McCabe v. O’Connor, 69 Iowa 134; and Farrell u. Wallace, 161 Iowa 528, 532. These were cases where parol evidence was sought to be introduced, to vary an unambiguous writing. The cases are cited to the point that the evidence varies a written contract, and that, as to part of the parol evidence, the court erroneously admitted evidence as to releases signed in the preceding- year. As to the last mentioned proposition, we think that the matters were so closely related and connected that it was proper to admit such evidence for the purpose indicated by the court.
Many cases are cited by appellee on this point. We shall simply cite some of them, without discussion. He cites McCormick Harv. Mach. Co. v. Morian, 121 Iowa 451, to the point that no parol testimony was received which varied the terms of the writing; that it is always permissible to show that a contract was never delivered. Also, Rath v. Schoon, 192 Iowa 180, as holding- that, if the terms -of an agreement are ambiguous and require explanation, then the conversations and conduct of the parties are admissible in aid of the construction; that, if the
2. Appellant complains of Instructions 8 and 9, the substance of which has been heretofore set out. Appellee contends that the instructions were not properly excepted to by appellant, so as to raise the questions now argued. However this may be, wc think the instructions fairly present the defendant’s theory of the case. In one of them, the word “intention” is used, but we think it is used in such a way as that it means a purpose or object of the parties in executing the releases, as shown by the evidence.
Other circumstances need not be referred to. We are cited by appellee to Locke v. Chicago Chronicle Co., 107 Iowa 390, 394; Gross v. Nichols, 72 Iowa 239. These cases hold that the question as to whether defendant was maintaining a place of business in Clarke County is a question of fact, and not of law. We think the following cases sustain the trial court’s ruling': Gilbert v. McCullough, 140 Iowa 362; Lake v. Western Silo Co., 177 Iowa 735; Ockerson v. Burnham & Co., 63 Iowa 570.
Appellee makes the further point that the ruling now under consideration was made prior to the appeal of the case to the Supreme Court; that appellant did not present that question on the former appeal; that this should have been done; and that, by its failure to do so, appellant has waived the question. Mitchell v. Lang & Co., (Iowa.) 112 N. W. 87 (not officially reported).
No prejudicial error appears, and the judgment is — Affirmed.
