^ ^ Joseph L. Smith brought this action for an accounting of insurance commissions alleged to be due him from the defendant, Federal Security Insurance Company, under the provisions of an oral General Agency insurance contract, The Insurance Company admitted in its pleadings that it entered into a verbal contract whereby plaintiff was to sell its policies in the State of Idaho, but denied that the commission schedule as claimed by the plaintiff was agreed to or that plaintiff was to act as a General Agent, A counterclaim alleged that plaintiff was indebted to the defendant in the sum of $3,447 by reason of his failure to remit net premiums. Judgment was entered for the plaintiff in the sum of $38,346.60, and in favor of the defendant on its counterclaim for the amount sued for, together with interest. This appeal is from the judgment in favor of the plain-
The trial court found that on or about January 1, 1953 the parties entered into a verbal contract by the terms of which plaintiff agreed to sell insurance for the defendant in the State of Idaho and to serve as Exclusive General Agent for the defendant s insurance business m that ,, , ,, . ,, , State; that on all policies sold by the , . ’ , 1 . : . plaintiff he was to receive a commission » . f ye?S P*3™' 17%% of the second year s renewal premmms’ a of the renewal premi]ums fro“ thr«e. to+ fn Iff; fat f policies sola within the State of Idaho for_ the defendant by other persons the plamtlff was to Iecei7eJ?Z° °f the years premiums and 2%% on renewal premiums from two to ten years. The court also found that the agreement was effective as of January 1, 1953, and was terminated on the 8th day of February, 1954. The question presented is whether there is substantial evidence to sustain these findings.
Rule 52(a), Fed.RuIes of Civ. Proc. 28 U.S.C.A., provides that in an action tried without a jury, the findings of fac-t shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. It js well established that appellate courts are required to accept findings of fact jf supported by substantial evidence and not clearly erroneous. Fuller v. C. M. &
W.
Drilling Co., 10 Cir.,
*296 While it is agreed that there was a verbal arrangement whereby plaintiff was to represent the defendant in Idaho, there was a sharp conflict between the parties as to some of the terms. The plaintiff testified that early in January, 1953, he met A. A. Timpson, Vice-president and General Manager of the defendant company, in Salt Lake City, Utah for the purpose of negotiating With defendant company a General Agency contract for the State of Idaho. After stating to Timpson that he would not accept any contract except that of a General Agent he was advised to return later for a decision. The gist of plaintiff’s testimony is that upon his return a few days later, Timpson agreed to a General Agency contract with commissions as stated in the Court’s findings. 1
The plaintiff stated that the contract was to commence immediately and was to be reduced to writing and forwarded to him in Idaho. The record does not disclose the exact date of the meetings, but the first meeting was after January 1, 1953. The complaint alleged that the ,, , , , . . , verbal contract was entered into on or , , _ , , . about February 1, 1953. Plaintiff also , .. . testified that he did not obtain a license to solicit insurance business m Idaho until early m February. In March, the plaintiff, with the consent of Timpson, opened a bank account in Idaho for the company. Timpson testified that the plaintiff was the only agent working for the company throughout its various territories who was authorized to withdraw funds from the company’s bank account, After obtaining an Idaho license, plaintiff and agents selected by him sold and continued to sell defendant’s insurance in Idaho. Timpson testified that it was quite likely that the company advised the Idaho Insurance Commissioner that plaintiff was the designated person to hire and discharge its agents in Idaho, in ju]y 0f 1953 Timpson forwarded a form of contract to plaintiff, which was substantially different from that which Smith testified had been agreed upon. 2 Plaintiff did not sign it and there was no change in hig method o£ handling the company,g business prior to the termina_ tion of his gerviceg in February of 1954. The trial court accepted pIaintifFg version of the contract whicb satigfieg tbe gub_ stantial evidence rule,
The fact that the parties intended that their agreement should later be reduced to writing does not affect the validity of the oral arrangement. It is quite evident that the parties did not intend that the effectiveness of the contract was to be delayed until reduced to writing as actual performance began and continued for several months before a w^te* form was submitted which ad^edly was not the same as the original understanding. The rule is that the mere ..... , . . „ . intention to reduce an oral or informal , , ... . ...... agreement to writing is not of itself sufficient to show ^ the parties intend_ ed that untü guch formal writing wag executed the contract should be ineffective. In the absenCe of a contrary intention, where the terms of a contract have been agreed upon, the failure to later execute a contemplated written instrument does not prevent the contract from becoming an obligation of the parties. 12 Am.Jur., Contracts, Section 25; Smith v. Onyx Oil & Chemical Co., 3 Cir.,
There is no merit to the contention that defendant’s letter of March on m-n . , , , , , , , 30, 1956 amounted to an account stated. ’. „ This was a “To whom it may concern letter of recommendation, written by Timpson to assist the plaintiff in secur- , , ... „ „ _ mg other employment. After some commendatory statements as to plaintiff’s ability as an insurance agent, the letter related that at the termination of plaintiff’s services with the defendant company, he had a debit balance of $3,447, and that “arrangements have been made between the company and Mr. Smith for a complete and satisfactory settlement of this account”. Clearly the settlement referred only to the amount which plaintiff owed the defendant. Timpson testified that it was agreed that plaintiff owed the company that amount of money. Plaintiff acknowledged that he was indebted to the company in the amount stated, but denied that the letter was for the purpose of settlement of accounts between the parties.
3
To constitute an account stated, it is necessary that the statement be ex-ammed and agreed to by the parties, either expressly or by implication. 1 Am. Jur., Accounts and Accounting, Section 16; Federal Deposit Ins. Corp. v. Kimsey, 10 Cir.,
As to the date upon which the contract was to become effective, we do not believe that the evidence supports the finding that it was to be effective as of January 1, 1953. It is without conflict that negotiations between Smith and Timpson began after the first of the year and continued for several days. The reeord does not disclose the date upon which Smith arrived in Idaho. An Idaho tícense was obtained by plaintiff about February first. The complaint alleges that the contract was effective as of Feb-19®8- ™iff’s testimony was ?ould not ^present the defendant m the insurance business until he ob- ... . ,, tamed an Idaho license. Considering the . . ... ... record-mite entirety, we think. that it was+ tha iateat the P"^es that the contract should become effective only ... ,. . T. . "Tiwií ^ua+hñcatfn, “ Idaho^ aad that the ^counting should be from a a e' 1
The case is Remanded for determination of the date upon which plaintiff qualified as an agent for defendant in Idaho, for an accounting from that date, and a modification of the judgment accordingly.
Notes
. Timpson testified that under the oral agreement, plaintiff was to receive 90% of the first year’s premiums on the insurance written by plaintiff or those appointed at his request, but he did not recall the commissions agreed to be paid f-rom renewal premiums received in subsequent years. He denied that plaintiff was to receive a commission on insuranee written by anyone except himself and agents appointed by him.
. This proposed contract was described as an “Agency Manager’s Contract”. The secretary of defendant company testified that he understood plaintiff to he a General Agent and he considered the Agency Manager’s contract as synonymous to that of a General Agent. Plaintiff testified that the secretary told the company president that “Mr. Smith was working under a general agent’s contract, but they changed the contract on him”.
. The trial court made no finding on the question and the defendant made no request for such a finding.