87 Ala. 213 | Ala. | 1888
This action was brought by Beck against West & Co., and claims damages, first, for unpaid commissions on sales made by Beck; and, second, for failing to supply him with expense money agreed to be supplied, and thereby preventing his performance of the contract, and throwing him out of employment. Other grievances are complained of, but we will show further on that they furnished no ground of recovery.
It is said in the bill of exceptions that there was a demurrer, and a ruling on it; but, inasmuch as this appears only in the bill of exceptions, we can not consider it. — 3 Brick. Dig. 78, § 7; Ib. 705, § 82.
The contract, for an alleged breach of which this action was brought, appears to have been made entirely by correspondence. There is no testimony tending to show that the contracting parties ever had a personal interview. Terms were offered by West & Co., which were accepted without modification by Beck. It was the duty of the court to interpret those writings, and hence it became its duty, and not that of the jury, to determine what obligations the writings imposed on each of the contracting parties. We concur with the trial court, in holding that no contract was made which bound either party to its observance for a longer term than January 1, 1888. We hold further, that, up to that time, there was a binding contract, requiring West & Co. to give employment to Beck as their travelling salesman, and, in consideration thereof, binding Beck to serve them as a
The interpretation we have given the contract places the parties in an embarrassing predicament, but it is chargeable, perhaps, to a want of foresight in framing it. It is not in our power to modify the terms they agreed on.
On the testimony found in this record, we are not able to affirm that plaintiff violated any term of his contract, while the testimony, if believed, shows that West & Co. broke their contract, by refusing to honor and pay Beck’s drafts] What, then, are proper elements of damages, entitling him to a recovery?
He was clearly entitled to recover his share of the profits on sales made by him. Bo, if he had agreements for later sales, which he could have perfected during his term, he is
The cost of plaintiff’s horse and buggy, the value of his services per month, and damage to his credit, were each and all irrelevant testimony, and properly ruled out.
Plaintiff, as a witness for himself, offered to testify, that “he had made arrangements with certain merchants to place their orders for tobacco, cigars and snuff, through plaintiff, on defendants’ house, on his second round in November and December, and offered to prove the names of such merchants, with the amount of goods each one proposed to take, and what plaintiff’s commission on such proposed sales would have been.” This testimony he was not allowed to give. This was error. To constitute this a right of recovery, however, his proof must come up to the rule as to certainty, which we have declared above.
The charge, “that in no event can the plaintiff recover more than the amount of his commissions” on sales actually made and completed, was probably correct on the testimony that was before the jury. No data had been placed before them, on which they could have rendered a verdict for greater damages. If the testimony, which we have decided the court should have received, had been put in, and had shown a case for recovery under.the rules we have declared, then the charge would have been erroneous.
Beversed and remanded.