Eisenberg, Admin. v. Air Cond., Inc.Eisenberg, Admin. v. Air Cond., Inc.
delivered the opinion of the Court.
Bernard C. Soothcage filed a nonresident attachment on original process in the Baltimore City Court against the appellee, Air Conditioning, Inc., for salesman’s commissions and supervisory and servicing charges. His claims were partly based on a written contract entered into on October 15, 1956, with Air Conditioning whereby he was employed to sell its commercial and industrial type air conditioning units in Maryland, Virginia, Delaware, and the District of Columbia, for which he was to receive a salesman’s commission of ten per cent of the net sale price. In addition, Soothcage claimed commissions on certain sales not within his territory, and compensation for supervising installation of the units and servicing them when trouble developed within a one-year guaran
Several months prior to trial on the merits, a hearing on motion to quash Soothcage’s second amended short note in attachment was held before Judge Cullen. In its opinion and order, the trial court concluded that Soothcage’s charge for supervision and servicing (as distinguished from commissions) represented an unliquidated claim as it could find no sufficient proof of a meeting of the minds on the rate of compensation to be paid. The claim for commissions, on the other hand, was held to be for a liquidated amount. The court found that since Soothcage had posted a bond for the amount of the claim held to be unliquidated, this met the requirement of Maryland Rule 1140 c 5 in regard to attachment on original process for an unliquidated claim. The motion was therefore overruled.
By a subsequent order, appellant’s motion to place the case on the jury trial docket was denied by Chief Judge Emory H. Niles.
The case was marked by voluminous pleadings, evidenced by six pages of docket entries in the Record Extract. It finally came to trial without a jury on Soothcage’s third amended short note, after his death was suggested and his Administrator was substituted as plaintiff. A garnishee, Stone Construction Co., had confessed assets of $18,483.00. Soothcage’s third amended short note claimed a total amount due of $37,-265.97 (as compared with $17,293.00 claimed in the original short note). The trial court, Judge Harlan presiding, disallowed plaintiff’s claim for supervision and servicing and for commissions on jobs done outside appellant’s assigned territory, except in two instances where the court found there was sufficient proof of oral agreement between the parties that a commission would be paid. Commissions on sales covered by the written contract were allowed with certain modifications agreed upon by the parties, according to evidence offered by Air Conditioning and accepted by the court. After allowing credits for sums already paid to Soothcage, and for telephone bills charged to him, the court entered judgment in favor of plaintiff-appellant for $3,863.80.
It appears that no useful purpose would be served in setting forth in detail the many points of dispute raised below or the many items of evidence introduced. But it is well to bear in mind Maryland Rule 886 a, which provides that when a case lias been tried below without a jury, “this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” See
Hall v. Morris,
(1)
With respect to appellant’s first contention, careful examination of the record provides no support for finding clearly erroneous the trial court’s decision that Soothcage’s claim for supervision and servicing was an unliquidated one. After considering “* * * the myriad pleadings herein and the many points of law advanced in the arguments by both counsel, as well as the testimony taken on the issue of liquidity of the claim set out [by plaintiff] * * *” the trial court found that there was not sufficient proof of a meeting of the minds between the parties in regard to a rate to be paid for Sooth-cage’s services, but rather, that Soothcage appeared to be suing on a charge fixed unilaterally by himself. This Court held in a leading case also involving a suit for services per
The contract involved in the instant case mentions nothing in regard to compensation for supervision and servicing, and there was conflict in the testimony as to whether any such compensation was ever agreed upon. It was therefore a function of the trial court to evaluate the evidence, and its conclusion that the claim was unliquidated cannot, on this record, be said to be clearly in error. In any event, appellant would not seem to have been prejudiced by that holding, since Maryland courts have jurisdiction in attachments on original process in
ex contractu
actions for unliquidated damages, Rule 1140 b 1, and appellant was permitted to amend his pleadings and file an attachment bond to cover the unliquidated portion of his claim. See
Lanasa v. Beggs,
(2)
Appellant claims the lower court erred in denying his motion for a jury trial, which was filed more than a year after institution of the suit. In seeking to avoid a much shorter time limit for electing a jury trial, said to be imposed by Rule 536 of the Supreme Bench of Baltimore City, appellant urges that the rule is not applicable to this action because of a provision in it stating that it “shall not apply
The rule is not in the record. This Court does not ordinarily take judicial notice of the rules of the lower courts, and the presumption is that the proceedings in the court below were in conformity with its own rules.
Cherry v. Baker,
(3)
We find no reversible error in the rulings of the trial court as to the facts and law with reference to the allowance (a) for commissions, (b) for supervisory service, or (c) in permitting a set-off.
(a)
There are two major items in controversy as to the amount of commissions payable to Soothcage under the contract. The chief dispute with regard thereto is whether or not the Die-craft installation and the three Penn Fruit installations, all in the Baltimore area, were or were not governed by the terms of the contract providing ordinarily for commissions of ten per cent. If governed by these provisions, Soothcage would have been entitled to a commission of $7,000 on the Diecraft installation, instead of the $3,500 allowed by the court, and to $7,425 on the Penn Fruit installations, instead ■of $696.20 allowed.
The construction placed upon an ambiguous contract by both parties, before any controversy has arisen, is important in aiding in its interpretation.
Service Realty Co. v. Luntz,
The testimony here, and the corroboration of that testimony by the letters and the accounting sheet, would appear to show that the parties intended that the amount of commissions in special cases should be left to agreement between the parties as they arose, and that Soothcage was not to receive any commissions on the company’s house accounts in his territory. We think that the trial court was not in error in considering such evidence in arriving at its conclusion that Soothcage himself had never claimed any more than the figures which it allowed him under the contract.
In addition to his compensation under the written contract, Soothcage, by virtue of alleged oral agreements, claimed that substantial sums were owed to him for commissions on jobs not included in his territory under the contract. In an answer to interrogatories, Soothcage described the occasion when the alleged oral agreement was made. A written instrument, signed by Air Conditioning but unsigned by Soothcage, allegedly incorporating the terms of the oral agreement, was introduced by appellant. There was testimony that Soothcage refused to sign this instrument when it was sent to him because of dissatisfaction with parts of it. The trial court, after weighing the conflicting testimony, concluded that the evidence was insufficient to establish any agreement between the parties for payment of commissions to Soothcage for anything done outside the territory covered by the written contract. It did allow the recovery of certain sums in connection with out-of-territory installations where it found an express agreement by the parties, not for commissions but for compensation for the performance of certain tasks. This Court has held that the
existence
and terms of an oral contract, when disputed, are for the trier of facts to determine.
Globe Home Imp. Co. v. McCarty,
Soothcage’s remaining claim for compensation was for supervisory services performed in connection with the installation of the air conditioning units sold by him under the contract, and servicing them thereafter. Again appellant based his right to recovery upon an oral agreement or, in the alternative, upon
quantum meruit.
In testimony at one of the preliminary hearings, Soothcage was vague about the circumstances of the agreement. In response to questions with respect to the charge for these services he stated, “I was to ■charge for it by hourly time,” and also, “The rate I worked for was $8 an hour.” The court in summing up his testimony ■during the hearing said, “He is also asserting a claim for •services, which
he says
he was authorized to perform for ■customers of Air Conditioning, and he makes his charge in this connection just as a lawyer, or doctor, or anybody else like that would make, at so much an hour.” (Emphasis supplied.) There was extensive testimony by officers of Air Conditioning to the effect that Soothcage was to receive no extra remuneration for the services. Perhaps even more damaging were the letters of Soothcage himself, which strongly imply that he expected
no
compensation for his services. His letters in effect were a protest against this situation. His testimony and letters indicate that the value of the services were put at what he himself felt them to be worth, an unliquidated ■claim, as we concluded earlier in this opinion. If there was •any agreement here (which we do not find), it was so vague •and indefinite in its essential terms as to be unenforceable.
Robinson v. Gardiner,
The claim for recovery for these services on a
quantum meruit
basis also must fail. In actions in the nature of assumpsit for services performed, it is necessary for plaintiff to show an agreement to pay for the services either express ■or implied from the circumstances.
Jarka Corp. of Balto. v. Pennsylvania R. Co.,
42 Fed. Supp. 371 (D. C. Md. 1941);
Cleaves v. Sharp & Dohme, Inc.,
(c)
Appellant contends that the trial court erred in permitting a set-off. The court allowed appellee credits for telephone charges incurred by Soothcage but paid for by it, and for certain partial payments already made on commissions due to him. Appellant argues that a claim for set-off must be pleaded specially.
In
District Agency Co. v. Suburban,
(4)
Appellant complains that the trial court committed error by admitting into evidence Soothcage’s undated letter, received by Air Conditioning on August 1, 1958 (hereinbefore referred to), on the ground that it was an offer of compromise and therefore inadmissible. If the letter be construed as an unaccepted offer to compromise the controversy involved in the litigation or as proof of the fact that an offer to compromise was made, it is inadmissible against the party who made the offer.
Union Trust Co. v. Resisto Mfg. Co.,
In determining whether or not a statement amounts to a compromise offer, the Court must look to the apparent intent of the parties 31 C.J.S.,
Evidence,
§ 285 b. While appellee argues that the rule applies only to offers of compromise by a defendant, it seems apparent that it also relates to an offer made by a plaintiff as it too implies a desire to avoid litigation, which is the reason Professor Wigmore assigns for exclusion of such evidence. IV Wigmore,
Evidence,
§ 1061. See also
Biggs & Co. v. Langhammer,
At first, the trial court appeared to regard the letter as an offer of compromise, but later in the trial held it to be a statement of what Soothcage claimed was in fact owed to him by Air Conditioning. This conclusion is borne out by the testimony of the president of Air Conditioning that shortly after the letter was sent, Soothcage handed the accounting sheet (hereinbefore referred to) to him and said, “Joe, here’s what you owe me.” The figures on the accounting sheet are exactly the same as those in the controversial letter. It would
(5)
Appellant attacks as hearsay the admission of letters between Air Conditioning and Penn Fruit and also a letter to Air Conditioning from Stone Construction Co., which tended to support appellee’s claim that the Penn Fruit installations were house accounts and not subject to commissions under Soothcage’s contract. The letters were offered to corroborate the testimony of one of the officers of Air Conditioning that he had solicited the Penn Fruit work prior to the signing of the contract with Soothcage. We see no prejudice in the admission of the letters, since the trial court allowed Soothcage’s estate the amounts which he himself had demanded, and thus no damage resulted. The facts involved were established by other competent evidence, and hence the letters were merely cumulative and therefore their admission was harmless.
Glen Burnie Plaza v. Schreiber,
Having found no prejudicial error in the rulings below, we will affirm.
Judgment affirmed; appellant to pay the costs of this appeal.