In 1911 the two defendants, I. Duncan Norwood and T. H. Rogers, under the trade-name of Norwood Pepper & Manufacturing Company, established a factory at Norwood, La., for drying peppers and manufacturing peppers into extracts and sauces. They did this on a- borrowed capital of $1,200. They bought the peppers from the farmers of the neighborhood, including Norwood. Rogers managed the business. For his service's he was paid a small salary; his real remuneration being, as we understand, in the prospect of the expected growth of the business. In 1911 they made no profit. In 1912 they made enough to pay up the interest on the borrowed capital, and to purchase and install another machine. In 1913 they increased their business, and paid the interest on the borrowed capital and part of the prihcipal, and installed another machine and a dryer. In 1914 they again increased their business, and paid up the balance of the borrowed capital. In 1915 they added to their plant a dryer and a blower at a cost of $1,000, and with $1,200 of borrowed capital enlarged their building. On the 11th of November, 1914, they “appointed” the plaintiff their selling agent. He was an expert commercial broker and sales agent of 30 years experience, thoroughly acquainted with the spice trade, and knowing, therefore,
He claims that the business of defendants would have increased largely if it had been continued, and that the agency would have yielded him at least $4,000 per annum, and he fixes his damages in that amount.
Defendants deny that the contract was violated. They were under np obligation, they say, to continue the business for any specified time, and plaintiff was to be their agent only so long as the business continued.
The answer is that the business was not losing money. Its assets were taken over by the corporation at a cash valuation of $13,-000. Out of nothing it had grown in four years to that value, to say nothing of its having become an established business with a bright prospect — a fact which is found .reflected in the adoption by the corporation of the trade-name of the firm, with the addition only of the word Baton Rouge; thus, Baton Rouge-Norwood Pepper Manufacturing Com1pany. Against this1 $13,000 the two other incorporators contributed towards the capital of the corporation a factory building and site they owned in the city of Baton Rouge, at a valuation of $11,000, and $4,000 in cash. The capitalization was $30,000. Two thousand dollars of the capital stock was not issued.
It is not pretended that the cost of production had increased; how, then, could.the concern have been losing money, when in the 17 months of plaintiff’s agency the prices “given” to plaintiff for the sale of the products were higher than those at which defendants had been selling theretofore, and in addition thereto a very considerable amount of overage was realized? The bulk of the $2,100 which the agency yielded to plaintiff in the 17 months of his agency was derived from this Overage, and necessarily the defendants realized a like amount.
Whether the $13,000 valuation placed upon the assets was after all debts paid, or subject to a debt of $1,800, which the firm owed to Mr. Pemble, and subject to another debt due to the Bank of Baton Rouge, amount not stated, is not shown in the record.
Mr. Rogers testified that he and Mr. Nor-wood had discontinued the business “simply because we could not run it.” That the result, if they had kept on, would have been that they “would have failed entirely.” He says that the firm was indebted to a Mr. Pemble in the sum' of $1,800, and also to the Bank of Baton Rouge., He.does not say, however, whether the firm 'had or had not products on hand sufficient for meeting these debts. Elsewhere in his testimony, speaking of Messrs. Steele and Gebelin, he said: “We didn’t try to sell to them. They made the
“A. Tes, sir; I mean the canning plant in Baton Rouge. We sold the machinery out of the plant, and we had the building there on our hands, doing nothing. It is admirably located for a manufacturing plant, having a direct switch connection with the L. R. & N. Railway. I knew Mr. Rogers, and he was in the Bank of Baton Rouge quite often, and we spoke of the matter one day, and discussed the forming of a new company and moving the plant to Baton Rouge, Baton Rouge being a very fine distributing point — admirably located for a distributing point. I suggested that if we could go together it would be better, and that the profits would be better for all of us, as we could get all the money we wanted, and that we could branch out. I finally convinced him, and then we organized the Baton RougeNorwood Pepper Manufacturing Company, Inc. We believed ourselves that we could make something out of it, and we finally convinced Mr. Rogers that it would be a better thing for him. We then organized the new company.”
In tbis testimony is found, we think, the true explanation of why the firm merged into the corporation. The two business men of Baton Rouge thought the business was a good one, and by persuasion induced defendants to make the change.
Mr. Norwood testified as follows:
‘•Q. Now, in 1912, did you still continue in business? A. Tes, sir; we continued in business.
“Q. Did your business increase? A. We got a little more peppers raised that year than the year before.
“Q. Did you make any profit that year? A. Well, we made a little profit — enough to pay the interest on what we borrowed.
‘■Q. Is that all? A. Tes, sir; and bought another machine that we needed.
“Q. Now, in 1913, did! the business increase any? A. A little; yes, sir. Every year it increased a little. ,
“Q. What did you make in 1913? A. Why, we made a little more that year. We bought the machine and another dryer. We bought a smaller dryer from Centerville.
“Q. What were the profits of your business that year? A. Well, very little; we paid the interest on the money a.ad part of the principal that year. We have never paid all of that $1,-200 yet.
‘‘Q. That is all you made in 1913? A. Tes, sir.
“Q. Now, 1914, is the year you commenced having Mr. Chamberlain sell for you, was it not? A. Tes, sir; that was in 1915.
“Q. Well, what did you do in the year 1914? A. We bought a little more pepper that year and made a little more money, and cleaned up the $1,200 that we owed. We were three years cleaning that up.
“Q. That is all you did in those three years? A. That is all we done in three years. That is all.
“Q. It took you three years to pay $1,200 and the interest? A. Tes, sir; and the expenses, of course.
“Q. Well, of course, the expense of conducting the business. Now, when Mr. Chamberlain went in with you what did you make? A. We got a whole lot more pepper raised that year and we done a little better that year.
“Q. Isn’t it a fact that you did a good deal better that year? A. We done more business, yes; but we didn’t get anything out of it. Mr. Chamberlain got it all himself.
“Q. How much did it cost you to buy the product — to prepare it for the market? A. It cost us about 7% cents to get it ready for market.
‘■Q. Did that include the' cost of the peppers from the farmers? A. Tes, sir; and manufacturing it.
“Q. That was the cost of the raw material and manufacturing? A. Tes, sir.
“Q. So, then, if it was sold for 10% or 11 cents a pound the profit would be 3% or 4% cents a pound? A. Tes, sir; or dried pods about 3 cents a pound.
“Q. Well, the question of profit is a pure question of mathematics. If it cost you 7% cents a pound to put it on the market and if you get 11% cents for it, your profit would be 4 cents a pound? A. Tes, sir; if we get that.
“Q. Now, if Mr. Chamberlain got $2,100 in overage, didn’t you get that same amount? A. No, sir.
“Q. How is that? A. No, indeed, we did not.
“Q. Why didn’t you? A. Because he, got 5 per cent, commission and one-half of the gross sales. We paid him a commission on the whole thing — on the gross sales — and then he took out 5 per cent, on the overage.
“Q. Well, if you shared with him half, didn’t you make as much overage as he did? A. Tes, sir; as much overage, but not on the 5 per cent.
“Q. I am not thinking about the 5 per cent.*387 When he sold anywhere up to 10.5 cents or 11.5 cents he got 4 per cent.? A. Yes, sir.
“Q. Now, when he sold it for more than 11.5 cents, there was overage, wasn’t there? A. Yes, sir.
“Q. And Mr. Chamberlain’s half of that overage was $2,100? A. Yes, sir; that was his commission and all.
“Q. How much . of that was commission ? A. I never figured it out.
“Q. Isn’t it a fact the larger part of it was ovex-age? A. Yes, sir; the most of it was overage.
“Q. It is a fact that very much the greater part-was overage? A. Yes, sir.
“Q. Then, didn’t you get .as much overage as he did? A. Yes, sir; we divided equally.
“Q. Now, what did you buy in the way of machinery, the year he was selling for you? A. One drier and a blower-.
“Q. What did that cost you? A. They cost us $500 each.
“Q. $1,000 for the two? A. Yes, six-.
“Q. Then didn’t you build a factory in addition to that? A. Yes, sir.
“Q. How much did the factory cost you? A. It cost us about $1,200. We borrowed the money to build it with, though.”
The contract by its express terms was to continue for two years, with the privilege on the part ol' plaintiff of extending it for five years more. It was therefore not terminable at the will of the defendants.
That it should be continued for the two and five years was as much a part of the agreement and contract as that the. plaintiff should furnish his services and should receive a commission and other payment. No doubt if, from any cause beyond the control of the defendants, the business had had to be discontixiued, the agency would have automatically terminated with it; but no such cause is shown. On the contrary, Mr. Norwood says: “We could have run it by going along like we did before.” The fact that the corporation continued the business shows that the discontinuance by the firm was altogether voluntary. A labored effort is made by Mr. Rogers in his testimony to show that the funds with which to continue were lacking ; but he does not say that all the money needed might not have been procured by simply bon-owing. He also says that he and Norwood had derived no benefit from the business. In that statement he loses sight of the fact that, starting from nothing, the business had in four seasons grown to the proportions of an established concern with $13,000 of assets. Whether any debts would have had to be deducted from this valuation does not appear. That the firm was on the way to larger profits is shown by the desire of Messrs. Steele and Gebelin, both of them experienced business men, to form a company for taking over the business with a view to continuing it; and is further shown by the fact that in the 17 months of his agency, in what may be considered to have been the formative period of the business, plaintiff realized $2,100, the greater part of which represented his one-half of the overage, or difference between the price obtained by hixn and those “given” him.
Money was needed by the firm in any considerable amount only to pay for the raw material (the peppers) bought from the farmers, and oxily for the interval between the 'date of the purchase of the materials and that of the sale of the products, a matter of merely u month or so; for the' evidence shows that, through plaixxtiff’s agency, the products were sold practically in advance. That a going and prospering concern, such as that of defendants, could not have obtained the advance of these necessary funds to pay for the raw material on hand ready to be manufactured and sold, is not shown, and is not to be believed. Not oxily was the credit of the firm good, out that of Norwood, who was a commercial partner, and therefore responsible for any debts the firm might contract, was, as we gather from the record, good for very much more than the fix-m could possibly have needed.
While the record shows what part each of the pai-tners took in the conducting of the business, it does nor: show what were the terms of their partnership agreement. Per
Another reason for disbelieving that this alleged lack of funds was the cause of the discontinuance of the business is that plaintiff had agreed to procure for the firm all the funds it might need for operating, and that no call was made upon him in that direction.
We do not understand the learned counsel of defendants to argue that the profits now claimed by plaintiff were not in the contemplation of the parties at the time of the contract. Had the compensation of the plaintiff for his services been fixed in a definite sum, instead of on a percentage basis, the total amount for the unexpired term of the contract would have been due and recoverable at the date of the violation of the contract; for although the language of the contract is that plaintiff was “appointed” agent, and not that he was hired, the contract was in reality a hiring of plaintiff’s services; and, when such a contract is violated, the entire amount to become due under it may be recovered at once. C. C. art. 2749. The compensation was expressly stipulated; hence it was within the contemplation of the parties. Indeed, it formed part and parcel of the contract in such way that the whole amount, whatever it might eventually prove to be, was stipulated in favor of plaintiff.
When a contract is thus made with a view to future profits, and is violated, the future profits necessarily are due. What their amount may be is another question; and, of course, judgment can be rendered only for such amount as the court can become satisfied, with reasonable certainty, would have been realized if the contract had been carried out. Reasonable certainty, not absolute certainty, is sufficient; for in such cases the attaining of absolute certainty is, in the nature of things, impossible, so-that to require it would simply amount to a confession on the part of the courts of inability to do justice in all such cases.
As an element of uncertainty in the situation, counsel suggest that the farmers of the neighborhood might have discontinued the raising of peppers; and, again, that the crops might have failed. This is very true; but the defendants discounted this risk, when they ventured into the enterprise, as being improbable; and the parties, when they made the contract sued on, do not seem to have considered such a thing probable; and, as a matter of fact, this case was tried in October, 1917, after the crop seasons of 1916 and 1917 had gone by, and we doubt not that, if the crops of these years had failed, proof would have been made of that fact. Nor is it shown that the pepper crop is a precarious one.
Again, it is. suggested that the defendants might have chosen to raise the prices given for the sale of the goods to a point which would have allowed of no overage, and that therefore the claim for damages, in so far as based upon the overage, is doubly uncertain from the faculty thus reserved to defendants to prevent the realization of any overage.
The answer to that suggestion is that this faculty was not reserved to defendants. Plaintiff explains in his testimony that with such a privilege reserved to defendants the contract would practically have been no contract, as the overage was the source from which the bulk of his remuneration was to
Another suggested source of uncertainty is that the market might have fallen below these prices, and there is evidence that the agent of the corporation made somo sales below these prices. But this agent had no previous experience in this line, and sold the peppers as ordinary peppers, in competition with the ordinary peppers on the market; whereas, the products of defendants should have been kept out of competition with the ordinary peppers of the market, as plaintiff testifies, without contradiction, he had done, and would have continued to do. So that the sale of them at a profitable price was not dependent upon the conditions of the ordinary market, and it was this circumstance that had induced the plaintiff to give up the agency he had with another firm, and accept that with defendants.
We find no good reason why the business could not have continued as it had done in the past; and why, therefore, the plaintiff, or his heir, who has been made a party to the suit, should not recover on that basis, but only for the time the contract would have continued, if defendants had not violated it — that is, up to the time of plaintiff’s death.
In the 17 months of its existence the agency yielded $2,100. The expenses incident to it amounted to $100, leaving $2,000 net. That sum, spread over the 17 months, would make $117.60 per month. The firm went out of business and terminated the agency at about the middle of April, 1916 — say, the 23d. From that date to that of the death of plaintiff would be 41 months; and this, at $117.60 per month, would make $4,821.60, for which the heir of plaintiff, who has been made a party to the suit, is entitled to judgment.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that plaintiff, Mrs. O. W. Chamberlain, have judgment against the defendants, I. Duncan Norwood and T. H. Rogers, in the sum of $4,821.60, with 5 per cent, per annum interest thereon from this date, and that the said defendants pay the costs of this suit.