270 S.W. 206 | Tex. App. | 1925
"Your duties will be to sell and distribute there, and in the territory hereafter designated by us in writing as tributary thereto, the goods and products which you may be supplied by the company, to collect accounts due or which may become due the company in that locality, to look after and properly care for all property of the company which may be placed in your charge; to make reports and perform other duties as may be required by the company from time to time; and to faithfully and accurately account for all funds, goods, products and property of every kind belonging to the company coming into your possession or under your control. And all indebtedness from you to the company shall be payable at home office.
"Prices. — You are to be governed strictly in making sales by the prices fixed by our general manager in writing, and whenever your commission is divided with the buyer, this appointment is revocable.
"Remittances. — It will be your duty to remit daily, unless otherwise instructed, the proceeds of all collections.
"Bonds. — You will be required to give bond in an approved surety company for $500, to be paid for by the company.
"Compensation. — In full payment for all your services and for the further consideration of your bearing all expenses incident to the operation of Gainesville station, except freight, license, and taxes, you will receive the following commissions: *207
Home gasoline ........................................... .015 Homelite kerosene ....................................... .0200 Home auto oil ........................................... 15 per cent. Rex auto oil ............................................ 15 per cent.
"An additional commission of one-half cent per gallon Homelite kerosene and one-fourth of one cent on Home gasoline will be allowed on deliveries made to the country towns outside of Gainesville.
"This agreement is to remain in effect for twenty-four months from date, with the privilege of renewal for twenty-four months.
"That are authorized to be sold by you through Gainesville Agency. It is further understood that your commission is based on less than carload sales only, and that no commission is to be paid on carload sales, unless agreed to in writing by the employee and general manager, prior to the date such sale is made.
"The commission herein agreed upon is for compensation for all other services rendered by said employee for Home Petroleum Company.
"Transfers. — Commission of one-half cent per gallon on gasoline, naphtha, and kerosene. One cent per gallon on lubricating oils, and five cents per case on case goods, is allowed.
"This cancels all agreements, verbal or written, as to remuneration or employment, heretofore existing.
"Kindly sign the acceptance clause below, and return one of the duplicate parts of this letter. It will then operate as our contract.
"Not subject to cancellation.
"Home Petroleum Company,
"By Hugo H. Hoevel, Sec'y. and Mgr.
"I accept the appointment and agree to all the terms and conditions in the foregoing.
"W. J. Clement, Agent." The Home Petroleum Company was thereafter dissolved, and succeeded by the Producers' Refining Company, which took over its business, including this contract. On or about September 29, 1917, the Producers' Refining Company discharged Clement. He then brought this suit for $25,000 damages for breach of the contract above set out. The Producers' Refining Company filed a cross-action for certain moneys which it claimed Clement had collected and not accounted for. The case was submitted to a jury on special issues, but after the evidence was closed and they had had the case under consideration for some 24 hours, the court permitted the Refining Company to withdraw its cross-action, and instructed the jury to return a verdict in favor of plaintiff for $465. This sum was for commissions due plaintiff for products sold while in appellee's employ. The court then rendered judgment for said sum, dismissed the Refining Company's cross-action, and denied plaintiff any recovery for breach of contract. From this judgment this appeal is prosecuted.
It is well settled that a contract to be valid must be mutual and binding upon both parties. H. T. C. Ry. Co. v. Mitchell,
Of course appellant was entitled to recover whatever he had earned under the executed portion of his contract; that is, his commissions on the products sold by him prior to his discharge.
Having concluded that the contract was unilateral and therefore not enforceable, appellant was not entitled to recover any damages for a breach thereof and the trial court properly so held. Nor did the provision "not subject to cancellation" add any binding force to a contract otherwise unenforceable.
Appellant earnestly insists that there was sufficient evidence to go to the jury on the question of whether or not appellant was wrongfully discharged for failure to keep proper books, to faithfully account to his employer for all sales, collections, etc., and to otherwise comply with the terms of the contract. Had the contract been valid and enforceable otherwise, we think there was sufficient evidence to carry that issue to the jury. But in view of the conclusion we have reached as to the contract itself, the reasons for the discharge of appellant become immaterial, and we pretermit a further discussion of that issue.
Nor was it reversible error for the trial court after the case was submitted to the jury and they could not agree, to withdraw it from them and direct a verdict. In an opinion by this court written by Chief Justice Key, it was expressly held that such action is within the discretion of the trial court. Citizens' Nat. Bank v. Abeel (Tex.Civ.App.)
Nor did the court err in dismissing without prejudice the Producers' Refining Company's cross-action. In such cross-action the Refining Company occupied the position of plaintiff, and though the appellant had in that connection set up a claim for certain commissions due him, his claim was not in any wise affected or prejudiced by a dismissal by the Refining Company of its claim. The dismissal of such cross-action in no wise affected the affirmative pleadings of the plaintiff and he could have proceeded under his pleadings as fully after such dismissal as if no such cross-action had ever been filed. Under such circumstances, it was not error to permit a dismissal. Walker v. Haley (Tex.Civ.App.)
In any event, however, we do not see where appellant could have been injured by the dismissal of the cross-action against him, as it appears that the jury had not agreed and could not agree upon the issues presented to them, one of which was appellee's cross-action.
Other issues are raised by appellant, but, under the view we have taken of the contract, we have not deemed it necessary to discuss them.
Finding no reversible error in the record the judgment of the trial court is affirmed.
*209Affirmed.