117 Va. 495 | Va. | 1915
delivered the opinion of the court.
This action was brought by the Apperson-Lee Motor Co., Inc., against the Eastern Motor Sales Corporation to recover of the defendant “commissions on sale of one Aleo Motor Truck to Montrose Fruit Company, Lynchburg, Virginia, at the price of $2,950.00 @ 15%—$442.50,” and at the trial of the cause a judgment was rendered upon the verdict of the jury in favor of the plaintiff for the sum of $376.12, with interest and costs, to which judgment this writ of error was allowed the defendant.
The .judgment complained of is for 15% of the price actually paid by the Montrose Fruit Co. for the truck in question, and the errors assigned deal only with the instructions given and refused by the trial court.
The court, at the request of the defendant in error, plaintiff below, gave three instructions, the first of which told the jury that the plaintiff was entitled to commissions on the sale of the truck in question if sold prior to the cancellation of the contract between the parties, and the objection to the instruction proceeds upon the theory that it erroneously recognized that the relation of the parties under their contract was that of agent and principal, instead of telling, the jury that the plaintiff, under the contract, was only to have as its compensation such profit as might arise on the sale of these trucks in a named territory, over and above the price it was to pay the defendant for a truck sold.
Under the contract between the parties, entitled “Agency Contract,” the defendant in error was given the exclusive right to sell in the territory named certain automobiles, the contract fixing the percentage which would be allowed on sales of cars in the specified territory, and it could make no possible difference whether this percentage was called in the court’s instruction commissions or discount. Not only so, but plaintiff in error construed the contract between it
Hudley on Automobiles (2nd ed.), p. 288, cited by plaintiff in error, does say that “an agency, within the meaning of the automobile trade, consists in giving the agent the exclusive right to purchase for cash from the manufacturer machines at a discount from the list price and retail them to customers at the full list price,” but all that is there meant, as the concluding part of the text shows, is that while in the automobile trade the agent is entitled to compensation, such compensation is not generally called com- ■ mission.
While plaintiff in error received compensation for the sale of the truck to the Montrose Fruit Co., it had done nothing in bringing about the sale, but, as plainly appears from the evidence, it was brought about alone by the efforts of defendant in error; so that whether the compensation for the sale it seeks to recover of plaintiff in error in this action be called discount or commissions is wholly immaterial.
Instruction No. 2 complained of is as follows: “The court instructs the jury that if they believe from the evi
The objections made to this instruction are: (1) That no sale was made of the truck in question until the draft attached to the bill of lading was paid and the truck delivered to the Montrose Fruit Co.; (2) that the instruction is erroneous in that it fixed the measure of the plaintiff’s damages in the event of recovery at 15% of the price paid by the Montrose Fruit Co. for the truck in question; and (3) the contention is made that there is no evidence in the-case upon which the last clause of the- instruction could be based.
With respect to the first objection, it may be true that the title to the truck in question remained in the seller until the bill of lading was delivered, but it is not true that the sale was to be considered incomplete until the bill of lading was delivered to the purchaser, since the controversy here is not with respect to the ownership of the truck as between the seller and the purchaser after it was delivered to the carrier in New York and before delivery of the
Nor did the court err in fixing the measure of damages for breach of contract for the exclusive right of sale as equivalent, to the discount allowed to defendant in error on the purchase price of the truck.
Referring to the latter clause of instruction No. 2, which is objected to, it appears in the evidence that plaintiff in error was advised of the sale of the truck to the Montrose Fruit Co. on April 17, 1913; that on the following day they wrote defendant in error cancelling the contract, stating in the letter that the contract was cancelled “owing to advices received from the American Locomotive Co.”; and plaintiff in error’s witness, Allport, who was also its
Instruction No. 3, complained of, is: “If the jury believe from the evidence that the defendant employed the plaintiff to find purchasers for motor trucks in the city of Lynchburg; that the plaintiff suggested the name of the Montrose Fruit Company of Lynchburg as a possible purchaser of a motor truck to the attention of the defendant; that the defendant, the Eastern Motor Sales Corporation, actually made the sale of the motor truck to the Montrose Fruit Company at the price of $2,950, then the jury must find for the plaintiff. That the plaintiff was the procuring cause of said sale if said sale was brought about by the plaintiff’s exertions in presenting the property to the attention of the purchasers, or by his introducing the purchaser to the defendant, or by his giving to the defendant as possible purchaser the name of the Montrose Fruit Company.”
The contention is that this instruction erroneously “calls for a sale actually made by the defendant (plaintiff in error) to the Montrose Fruit Company, and that there is no
It is true that the sale of the truck in question to the Montrose Fruit Co. was actually made by the American Locomotive Co., but the sale was brought about by the efforts of defendant in error, was immediately reported by the seller to plaintiff in error, its general agent in Virginia, by letter, the letter saying: “We draw on the Mont-rose Fruit Company for the price of the truck, crediting your account with the commission”; so that it could make no possible difference whether the sale was actually made by plaintiff in error or by its principal, the American Locomotive Co., since plaintiff in error had authority to make the contract it did with defendant in error, and if the jury believed that defendant in error was the procuring cause of the sale, which they were warranted in believing from the evidence, it was clearly entitled to recover of plaintiff in error commissions on the sale of this truck and especially is this true when it appears that the commissions thereon had been paid to plaintiff in error instead of to defendant in error, who had brought the truck to the attention of the purchaser and also aided materially in the sale of this particular truck. Gresham v. Gillis, supra.
The trial court having fully and fairly instructed the jury as to the law applicable to the facts which the evidence in the case tended to prove, it did not err in refusing other instructions that were asked by plaintiff in error.
Upon the whole case we are of opinion that the judgment complained of is without error and, therefore, it is affirmed.
Affirmed.