182 Iowa 1308 | Iowa | 1918
“The court, after considering the motion of both plaintiff and defendant for directed verdict, has concluded that it was the duty of the plaintiff in this case, upon his discharge, to seek employment of the same general nature, and that the testimony conclusively shows that the plaintiff made absolutely no effort to seek any employment of the same general nature or that which he wished to perform for the defendant, but that he did, practically immediately after his discharge, return to the farm and enter into the business of farming. If the plaintiff entered into said business of farming without the consent of the defendant, either expressed or implied, the plaintiff would not be entitled to recover in this case, and the court is of the opinion that, in adopting the testimony to the best advantage of the plaintiff,- that it shows that all negotiations for the plaintiff to return to the farm were ended after the conclusion of the negotiations for the closing of the contract, and that thereafter and subsequent, and either soon thereafter or immediately, the defendant discharged the plaintiff without just cause, and nothing was said concerning the plaintiff’s returning to the farm, and no consent was given.”
It will be noted from the above that the court found: (1) That the defendant discharged the plaintiff “without just cause;” (2) that the plaintiff failed to make any effort to seek employment of the same general nature, but that he entered into the business of farming; (3) that the defendant never consented that the plaintiff should enter into the business of farming.
The dismissal was based upon the second and third grounds here stated. The second and third findings of fact made by the court are sustained by the record. The plain
In Howard v. Daly, 61 N. Y. 362, the general rule is stated as follows:
“Prima facie, the plaintiff is damaged to the extent of the amount stipulated to be paid. The burden of proof is on the- defendant to show either that the plaintiff has found employment elsewhere, or that other similar employment has been offered and declined, or, at least, that such employment might have been found. I do not think that the plaintiff is bound to show affirmatively, as a part of her case, that such employment was sought for and could not be found. Greenleaf on Evidence, Sec. 261 a; Costigan v. M. and H. R. R. Co., 2 Den. 609. * * * Her action was for damages for not being permitted to work, and not for wages; and the defendant might show affirmatively, and by way of mitigation of damages, that she had opportunities to make a theatrical engagement elsewhere, which she did not accept. Without such proof, she was entitled to recover the full amount of the compensation stipulated in the contract.”
“Party of the first part further agrees to pay to party of the second part one half of the net profits on any cars, automobiles, or trucks sold by the party of the second part from the stock of the Guarantee Motor Co. during the term of this agreement, basing first cost of Kissel cars and trucks at 20 per cent of the list, plus freight.”
Fisk was the “manager” of the Guarantee Motors Company. He was so held out, not only by himself, but by the officials of the company. His contract with the Guarantee Motors Company, however, entitled him only to commissions on business done. Though the Guarantee Motors Company did not sign the contract in question, and were, therefore, not bound thereby, except at their subsequent option, it will be noted, nevertheless, that the subject-matter of the’ contract had to do with the property of the Guarantee Motors Company. The automobiles that were to be sold by the plaintiff for a commission were to be sold from the stock of the Guarantee Motors Company. Sales thus made would necessarily be made in the name of the Guarantee Motors Company. The commissions to be paid to the plaintiff would necessarily be paid by the Guarantee Rotors
“Second party further agrees not to sell Kissel cars in any other territory than that described herein, and in cases of unauthorized sales, he is to pay to the first party a sum, equal to the discount on the car so sold.”
The contract of agency between the plaintiff- and the Kissel Car Company previously existing contained a similar provision. This counterclaim was predicated upon the theory that, by reason of this provision in the contract made by the Kissel Car Company with its various dealers, if one dealer sold a Kissel car within the territory of another dealer, he became liable for damages to the dealer whose Kissel car territory was thus invaded. This is assuming that every dealer in Kissel oars, under such a contract with the manufacturing company, became a party to every contract and in privity with every other Kissel car dealer in the state under similar contract. Such theory is clearly unsound. The rights and liabilities of each dealer were determined by the terms of his contract with the manufacturer. This contract with the manufacturer bound the dealer, in fact, to pay list price, without discount, for such cars as he might sell' outside of his prescribed territory. The measure of his penalty for transcending his territory was thus. fixed. His liability therefor was to the manufacturing company, and to no one else. The plaintiff, therefore,' was not liable to either defendant for damages for the sale of the Kissel cars, upon the ground predicated in the .counterclaims. The question naturally suggests itself whether he might be liable, not because of the provisions in the dealer’s contract, but on the ground that his conduct
“Party of the second part is to have the privilege of selling the two Kissel cars he has now on hand with no profit to party of the first part, and he agrees to keep a Kissel car for his own use and maintain the same at his own expense during the term of this contract.” ■
This paragraph is somewhat indefinite. It does not specify the territory where the plaintiff might sell the Kissel cars, but it does provide that they might be sold without profit to his employers. Inasmuch as the Guarantee Motors Company, under its contract with the Kissel Car Company, could make no sales outside of its own territory, and could, therefore, have no profits in any other territory, the fair construction of this proviso in the contract is that it was intended as an unqualified permission to the plaintiff to sell his Kissel cars without profit to the employer, even though made within its territory.
IV. The defendant Fisk served notice of a cross-appeal. He has not pressed the appeal, however, in his brief, further than to urge upon us that the verdict for $25 in favor of the plaintiff was without support in the evidence. This contention quite disregards the evidence of the plaintiff as a witness. The credibility of it was for the jury. Upon the appeal of the defendant, the judgment below must be affirmed. Upon the appeal of the plaintiff, as to Count 1 of his petition, the order of dismissal is reversed, as to both defendants. — Ajfw-med in part and reversed in pari.