58 Ind. App. 394 | Ind. Ct. App. | 1914
Appellee sued appellant to- recover certain commissions alleged to be due him for the sale of silverware. The complaint of a single paragraph proceeds upon the theory that appellee entered into an oral contract with appellant company whereby he was to sell for it certain sets of' silverware, either for cash, or on the installment plan. If for cash, he was to remit to the defendant the sum of $5.40 for each set. If on the installment plan, each set was to be sold for $13, upon a lease contract to be- executed by the purchaser, and appellee was to receive-for his service in making such sale the sum of $3, $1 of which he was to collect personally from the customer at the time of making the sale and obtaining the lease contract, and this he was to retain as part of his commission. He was to receive from appellant the further sum of $1 when the sale was verified by another agent of appellant and the further sum of $1 as soon as any collection was made on the amount, or if any collection was made at the time of verification of the lease, he was at that time to receive his additional $2. There is attached to the complaint a bill of particulars setting forth the various sales made, giving the number of each sale and the name of the customer, from which it appears that there is due appellee the sum of $281.75, for his services, for which amount he asks judgment.
Appellant avers in its affirmative answer many of the same facts as to installment sales which appear in the complaint with the further averments that, in case of cash sales, appellee was to remit to appellant the sum of $6.50 in full settlement of the set. As to the payment of appellee’s commissions, it is averred that by the terms of the contract entered into between appellee and appellant, appellee, upon the sale of a set of silverware, was to collect the sum of $1 as an advance payment upon all goods sold on the installment plan or lease contract in which appellant retained the title to the goods until paid for and appellee was to keep said $1 as part pay for his commission and was to receive the remaining $2 of his commission whenever paid in by the customer, but no commission was to be paid by appellant beyond the amount actually collected upon the lease contract, and it was a part of the contract that if any monies were advanced as a commission upon any sale before the full amount of the commission or such amount as had been advanced had been paid in by the customer, and appellant thereafter should fail to collect a sufficient amount to cover the commission, then and in .that event said amount would be rebated by appellee to appellant in his next settlement. Appellee was to be wholly responsible for each set of silverware taken by him for sale until one collection was made, and in case it was lost, he was to pay $5.40 therefor. It
Also after appellee had begun work he was desirous of obtaining his full commission when a sale was made, and appellant paid him in full a number of such commissions, the name of each customer and the number of each sale and the amount of advancement in each is attached to the answer in the form of an itemized statement.
The averment is that these payments were made by virtue of a written agreement which was signed by appellee each time payment of commissions was made, which is also attached as an exhibit, and of which the following is a copy, the material part of which was in fine print at the bottom of the slip.
Form 265.
C. F. ADAMS COMPANY.
(Receipt for Commission.)
Indianapolis, Ind., 2/26, 1910
B. Helman (Agent’s Name.)
INSTRUCTIONS. — Send this receipt to Erie, where it will serve the double purpose of being a memorandum to headquarters of Commissions Paid (we keep a check on commissions here,) and where they will be filed for future reference. Enter the Agent’s name and Lease Nos. with Amounts in your Cash Book, and post from that to Commission Book, checking each item “V” on Cash Book, as you post.
Total, $40.75
SETTLEMENT:
Cash, $.........Rebates, $........Total, $.
Received of C. F. ADAMS CO., $.........Commissions on the above Lease Numbers. My agreement is that all commission on any sale made by me shall be due and payable only when it has been collected by regular collector, and that any money paid me on account shall not be construed as waiving this rule in any manner whatsoever. I further agree to be governed by all 'rules of the Company now in force or that at any future time may be put in force by them for the proper conduct of their business, and I agree that should- any parts of possible commission be drawn ahead of collection, to refund the same, if not collected by the C. F. Adams Co. Also to be responsible for all goods until one collection has been made on same, and I authorize the manager of C. F. Adams Co. to deduct from commissions due me any amounts charged to me in accordance with above.
Helman, Agent.
100 M. 7-10. a. P. R. X.
The itemized statement made a part of this answer shows also the amount originally advanced to appellee at the tunes of sale as commission and the amount charged against him when the original $1 was paid to the defaulting purchaser in order that the goods might be recovered, and in cases where amounts were charged against him where less than $3 was paid in by the customer, and the lease was cancelled. It is also alleged in the answer that, after advancements were made to appellee in subsequent settlements, he allowed
By the cross-complaint, appellant seeks to recover from the appellee a sum of money representing duplicate payment of commissions paid through the mistake of both parties, also for sixteen sets of the ware which were not accounted for at $5.40 per set, amounting in all to $127.65. ■
No error appears, and the judgment is affirmed.
Note.—Reported in 106 N. E. 733. As to evidence to explain words used in a written contract, see 122 Am. St. 545. See, also, under (1) 17 Cyc. 596; (2) 9 Cyc. 594; (3) 9 Cyc. 763; (4) 3 Cyc. 345; (5) 38 Cyc. 1613, 1711; (6) 2 Cyc. 691.