238 F. 257 | 8th Cir. | 1916
E. R. Bailey, the defendant below, appeals from a decree which reforms and modifies the written contract of June 4, 1907, between the Lisle Manufacturing Company, a corporation, and himself, so as to deprive him of thousands of dollars, Commissions which, according to the terms of the agreement, he had earned as the general sales agent of that company. As such agent he had made a sale of 15,000 cream separators to the William Galloway Company for $30.80 each, upon which he was to receive settlement and payment under the third paragraph of the contract, which provided that as commission or compensation as general sales agent he should “receive that part of the amount the company received from the sale of separators as is in excess of fifty (50) per cent, of retail list price on all separators he may sell or cause to be sold to the trade or others who may desire to purchase.” The Lisle Company appealed to the court to modify this clause of the contract on the ground of mutual mistake, and the court by its decree so modified it that it now reads that Bailey shall “receive that part of the amount the company receives from the sale of separators as is in excess of fifty per cent. (50%) of retail list price on a11 separators he may sell or cause to be sold to the retail trade,” thereby depriving Mr. Bailey of this commission which the Lisle Company by its written agreement contracted to pay him on the 15,000 separators he sold to the Galloway Company and on all other separators sold to the wholesale trade, or to any others than those engaged in the retail trade. Bailey insists that the evidence was insufficient to sustain the finding of a mutual mistake, and this claim has rendered it necessary to make a patient and thorough examination of the record.
“The said Bailey is to act on a commission as the general sales agent for the company for the sale of separators, * * * and as commission or compensation he is to receive that part of the amount the company received from the sale of separators as is in excess of fifty per cent. (50%) of retail list price on all separators he may sell or cause to be sold to the trade or to others who may desire to purchase.”
The provisions of this contract of June 4, 1907, regarding the royalty or amount agreed to be paid “for the privilege of manufacturing cream' separators under patents,” it will be seen, differs from the provision of the royalty contract of June 5, 1906, whose place it took, in this: That under the contract of June 5, 1906, he was to receive 5 per cent, of the amount of the sales, while under the contract of June 4, 1907, he was to receive $1 on each separator sold, and the excess of. 10 per cent, of the net profits over that amount. But the provision of the contract of June 4, 1907, regarding Bailey’s service as general sales agent and the commission the company was to pay him therefor, is in effect the same as that in the commission contract of November 7, 1905, whose place the contract of June 4, 1907, took. During a few days preceding June 4, 1907, C. A. Lisle, the president of the Lisle Company, Edwin Lisle, his son, the secretary of the company, and William Orr, one of the directors of the company, an attorney at law, who sometimes acted as the company’s attorney, had been objecting to the payment of the royalty of 5 per cent, on the sales of the 15,000 separators, and negotiating with Bailey to make the contract of June 4, 1907, in the place of the two preceding contracts, and they had finally agreed with him that, instead of the 5 per cent, on the sales owing him under the royalty contract, he should receive $1 for each of the 15,000 sepa
The Lisle Company paid Bailey $1 on each of these separators, but it never paid him any of the'excess of the amount of the sales over 50 per cent, of the retail list price which it received for them, or any of the excess of 10 per cent, of its net profits over the amount of $1 per separator, and in 1912 he brought an action to recover these amounts. As by the terms of the contract the company was clearly liable to pay them, and it could not defend the action at law on the ground that it was not bound to do so by that contract, it brought this suit to so modify the contract on the ground of mutual mistake as to relieve it from liability on account of the sales of its separators to the Galloway Company, and to other wholesale dealers, which constituted the great bulk of its sales. The action at law awaits the result of this suit. The facts thus far stated are either undisputed or conclusively established.
The company claimed that before the contract of June 4, 1907, was made Bailey agreed with C. A. Lisle, Edwin Lisle, and Orr that by that bontract he would waive his commission of the amount of the sales in excess of 50 per cent, of the retail list price of the 15,000 separators sold to the Galloway Company, and to other wholesale deal'ers; that C. A. Lisle stated to the directors at their meeting on tire morning of June 4, 1907, in the presence of Bailey, that such was the effect of the contract of that date; that Bailey then assented to that statement; and that by mutual mistake no provision was written into the contract of June 4, 1907, to that effect. Bailey denied all this, and the testimony regarding it is conflicting. The contract of November 7, 1905, for die excess of the amount of the salés over 50 per cent, of the retail list price was a contract for a commission, and this excess will be called henceforth the commission. The contract of June 5, 1906, for the 5 per cent, of the amount of the sales was a contract for a royalty, and that 5 per cent., and its subsequent modification to $1 per separator and the excess over that amount of 10 per cent, of the profits, will be
“I think nothing was said at the meeting in November, 1906, concerning the Bailey contract. It was a directors’ meeting, related to accepting the Galloway contract. It was mentioned there that Mr. Bailey was only to get the 5 per cent, on the 6,000 contract, but his contract was not discussed. There was no contract discussed at all with Mr. Bailey at this time, and nothing presented in writing aside from the Galloway proposition for 6,000 machines.”
Mr. Bailey testified on this subject:
“When the first Galloway contract was brought back indSTovember, 1906, 1 do not know that my compensation was taken up in a special way; nothing was said outside the contract that was then in force.”
The foregoing is the only evidence on this specific issue. At that time, November, 1906, there was a written contract of November 7, 1905, between the company and Bailey that he should act as general sales agent of the company, and that he should receive his commission, and he had made the sale of the 6,000 separators under that contract. There is nothing in this testimony to establish the fact that Bailey made any agreement to modify that contract, or that the company gave, or promised to give, him any consideration for such an agreement of modification. • The evidence is clearly insufficient to abrogate or modify the written contract of November 7, 1905, and when, in June, 1907, the parties came to the negotiations for the contract of June 4th in that year, the Risle Company stood bound under the contract of November 7, 1905, to pay him his commission, and under its contract of June 5, 1906, to pay him his royalty, on the 15,000 separators which in May, 1907, he had contracted to sell for it to the Galloway Company, if the Lisle Company accepted that contract.
In the negotiations for the contract of June 4, 1907, all the witnesses agree that there were propositions and suggestions of different amounts of royalty, and repeated and prolonged discussions as to the amount of royalty, that the company should agree to pay, but no such suggestions of amounts, and no discussion of the amount of the commission, that the company should agree to pay. C. A. Lisle testified that, when Bailey brought the second Galloway contract, it provided for a reduction of the existing selling price of the separators from $36 to $30.80, and that the company objected “to paying 5 per cent., and the matter was discussed pro and con for several days”; that in the discussion he offered 10 per cent, of the profits, and Bailey rejected the offer, and demanded that he have $1 on each separator; that, of course, Mr. Lisle wanted less than $1; that he told Bailey that he would give no more
The foregoing is all the testimony as to the agreement upon the terms of the contract in litigation before that contract was drawn and presented to the board, except that there was evidence that before these conversations and the oral agreement in which they resulted a proposed contract had been drawn, which had been changed by interlineation, which contained very different terms from those in the contract of June 4, 1907, and which had been repeatedly examined, and which was not satisfactory. Under this evidence, there is no escape from the conclusion, not only that the company failed to prove that there was any
But the company insists that the evidence of the acts of the parties on June 4, 1907, entitles it to a reformation of the contract: (1) Because they establish a mutual mistake in the execution of it; and (2) because Bailey is estopped by his acts on that day from resisting such a reformation. In the forenoon of June 4, 1907, the contract was presented to the officers and members of the board of directors of the company for examination and execution. There was more than one copy of it. C. A. Lisle, the president, had one copy from which he read aloud to the gentlemen present, and some of the other directors had the other copy, and at one time during the meeting it was in the hands of Orr, the treasurer of the company and the attorney at law. Directors C. A. Lisle, Edwin Lisle, Orr, Standage, Ferris, Ganiard, and Bailey, and Vice President Woolson were present. C. A. Lisle testified, in answer to the question, “What was said, if anything, with regard to what the compensation was of the Galloway contract for machines manufactured under those circumstances?” that he explained that it “was 10 per cent., on a 10 per cent, basis, with a $1 guaranty, on all sales made and delivered and paid for”; that Mr. Orr said that was correct, that'was the way the contract was made, and that the matter of the Monarch separators was to be on the same basis as before. He testified that Mr. Bailey explained that the matter of the Monarch separators was to be on the basis of 50 per cent, of all above half of the list price. He did not testify that he told the directors that the reduced royalty was all that Bailey was to receive on the Galloway separators, or that Bailey had agreed to renounce or waive his commission contract. Edwin Lisle testified that C. A. Lisle said to the meeting that he and Bailey had agreed to combine the two contracts into one, to carry on the Monarch business as theretofore, and that Bailey had decided to accept 10 per cent, of the net profits as his compensation, his commission or royalty, on the Galloway contract, but that he must have $1 down and the balance of the 10 per cent, at the close of the year; that he then turned to Bailey, and asked him if that was correct, and he answered, “Yes.” He further testified that Mr. Orr said
“When Mr. lisle read down to the clause in the contract which states the 50 per cent, of the list price agreement, again he said that that applied to the Monarch machines, and other machines that were sold in the same way as the Monarch was sold. I don’t, remember that Bailey said anything in regard to that. He was there and took part. The main talk was about the 10 per cent, agreement.”
He also testified*.
“When I asked Mr. Lisle if that was all that Mr. Bailey was to get under the Galloway contract, that there was to be no commission for selling, he said that Mr. Bailey waived any commission on account of the large number of machines and the royalty would amount to so much.”
This was all the testimony in support of the contention that at this meeting Bailey by act or silence assented or agreed to the proposition that by the contract to be made or otherwise he waived or surrendered, or would waive or surrender, his commission of that part of the amount realized from the sales of the 15,000 separators in excess of the retail .list price. When this testimony is examined in view of the issue whether the alleged admission of Bailey extended over a waiver of the 50 per cent, commission on sales of the 15,000 separators, or was limited to the modification of the royalty, it is far from convincing. Bearing in mind the fact that the royalty on the Monarch and on all other machines under the contract of June 5, 1906, was 5 per cent, of the sales and the fact that the reduction of this royalty was the only reduction discussed in the negotiations for the contract, or at this meeting of the board of directors, the statement that the matter of the lyionarch separators was to be on the same basis as before is perfectly consistent with the fact that the commission on the Galloway separators was to be the same as before, and that the only reduction was on the royalty upon them.
Another striking fact about this testimony is that, so far as it sustained the contention that Bailey by word or act consented or agreed that he waived or surrendered, or that the contract under discussion provided that he should surrender or waive, his commission, it rests on hearsay and the testimony of Mr. Orr, who, according to the testimony of Edwin Lisle, stated at the meeting that, as he understood the contract, Bailey waived everything but his dollar and the 10 per cent. Mr. Orr was certainly incorrect in his understanding of the contract which was then before him and under consideration, for it not only fails to evidence any waiver or sur
But their testimony on the crucial issue in the case is shaken and contradicted by the evidence of others present. Bailey testified that ther§ was more discussion at the meeting of the 10 per cent, clause than of any other; that the commission of SO per cent, of the list price was not mentioned to his knowledge; that the paragraph in the contract regarding it was read to the board and remarks were called for; that he made no remarks about the contract, and as he was interested he did not vote upon it; and that the matter of re-' linquishing or reducing his commission of the excess of the sales over 50 per cent, of the list price on the 15,000 separators was never discussed with him, and he never agreed to do so. He testified that Mr. Woolson, the vice president, was not satisfied with the 10 per cent, clause, and the meeting adjourned to the afternoon, and Woolson took a copy of the contract. Woolson was called as a witness and examined by the company, but it asked him no questions about the acts and sayings at the meeting, and when Bailey’s attorney undertook to do so the company objected, on the ground that such testimony was not cross-examination, and he did not testify upon the subject. Director Ferris was in the city during the trial, and he was not called to testify. Director Standage testified that he heard the discussion at the meeting; that Bailey wanted a profit above the 5 per cent.; thaf Risle said they could not pay five per cent., but he would pay $1 for each separator; that, if it amounted to more, Bailey was to have it; that he “was to have half of the price of the machines, the purchase price, the selling price, half of the purchase price; that is my meaning of it. He wanted a 10 per cent, profit I think. Mr. Risle said he could not pay it, and Mr. Orr said the same. Mr. Bailey argued for that amount, for $1 and 10 per cent. They said they would pay him $1; that is my memory. I understood Mr. Bailey agreed to it.” Director Ganiard testified that he was present when the contract was read aloud to the membefs of the board by C. A.
After the contract was signed, the Galloway contract was accepted, and all parties entered upon the performance of it. The Lisle Company rendered accounts monthly to Bailey, and paid him $1 on each separator sold under the Galloway contract; but it never paid him the excess of 10 per,cent, of the profits, if any, nor the commission of the excess of these sales over 50 per cent, of the retail list price, of the machines, and its officers testify that he never demanded nor claimed these amounts until February 19, 1912. Bailey testified that, shortly after ’receiving the first account of settlement under the second Galloway contract, he noticed that the company had credited him with only the $1 per machine, and he went to Edwin Lisle and asked him where the commission was for the machines; that he said there was no commission, that all they were going to pay him was the $1 per machine, and that he told Lisle that that was not according to his understanding at all; that he told Director Ganiard about it, but that after thinking it over he concluded that, as they were just starting the business, he would let the matter rest in the hope of an. amicable settlement later, and he concluded to stand upon -his contract. Edwin Lisle testified that no such conversation took place between him and Bailey. There was other evidence in the case, but none that can change the result which that which has been recited compels.
The circumstances surrounding these parties when they entered upon the contract of June 4, 1907, the fact that they were then bound by contracts under which Mr. Bailey was entitled to receive upon the sales of the 15,000 separators as commission as sales agent the excess of the sales above 50 per cent., of the retail list price of the machines and a royalty of 5 per cent, of the sales, the fact that the evidence does not establish any assent or agreement on his part to make a contract to reduce his commission, although it does show that he agreed to make a contract reducing his royalty prior to the time that the contract of June 4, 1907, was drawn, the fact that there was never any discussion or debate about, the reduction of the commission or the amount of it, but the provision of the contract of June 4, 1907, regarding it was in effect, the same as the provision in the contract of November 7, 1906, the improbability that there would have been a change of this commission or a relinquishment of it without debate or discussion, the fact that the testimony as to the conversation and statements in the presence of the board on June 4, 1907, when the draft of the contract was in the hands of the officers of the company and was being considered, is conflicting, and it is not probable that Mr. Bailey would have consented to a relinquishment of his commission on that day without debate or discussion or objection, have forced our minds to the conclusion that in this case the complainant fell far short of establishing by even a preponderance of the testimony, much less by evidence that is plain and convincing beyond controversy, either that there was a mutual mistake in the drafting or signing of the contract, or that the defendant Bailey by silence,’ act, or speech at the meeting of the board of directors of the company ever indicated his admission or assent to any statement that the royalty was all the compensation he was to receive for the sale of the 15,000 separators, that the commission clause of the contract was inapplicable to the sale of these separators, or that he relinquished his commission upon them.
“An estoppel cannot arise from a promise as to future action with respect to a right to be acquired upon an -agreement not yet made. * * * The doctrine has no place for application when the statement relates to rights depending upon contracts yet to be made, to which the person complaining is to be a party. He has it in his power in such cases to guard in advance against any consequences of a subsequent change of intention and conduct by the person with whom he is dealing. For compliance with arrangements respecting future transactions parties must provide by stipulations in their agreements when reduced to writing.”
The theory of estoppel, deceit, or inequitable conduct utterly fails here, because the complainant had the same knowledge and means of knowledge of what the agreement to be signed was that Bailey had, to wit, the written contract itself in the hands of its officers, and knowledge of the fact by the deceiver, and absence of knowledge and of the ready means of knowledge by the deceived, are indispensable to an estoppel, or to such deceit or inequity as will warrant the avoidance of a written contract. Chicago, St. P., M. & O. Ry. Co. v. Belliwith, 28 C. C. A. 358, 362, 83 Fed. 437, 441.
The decree below must be reversed, and the case must be remanded to the court below, with directions to dismiss the suit on its merits and to proceed with the trial of the action at law. And it is so ordered.
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