160 Iowa 244 | Iowa | 1913
The plaintiff is a corporation engaged in the sale of medicines and remedies of various kinds through the agency or employment of traveling salesmen. On February 24,1904, the defendant Moss entered the plaintiff’s employment as salesman for a period ending March 1, 1905, according to the terms of a written contract executed by the parties as of the date first named. By the terms of the writing Moss was to canvass and make sales in the counties of Montgomery and Wilson in the state of Kansas. New contracts of like nature for additional periods were made between the parties from time to time without substantial change of terms, the last of such instruments bearing date April 22, 1908. In each instance the defendant Smith in writing became surety for the faithful performance of .the contract by Moss. Without prolonging this statement by setting out at large the terms of the writing it is sufficient to say that plaintiff undertook to furnish the goods at a designated scale or schedule of prices, and Moss on his part was to canvass his territory from house to house, making sales at prices fixed by the plaintiff. According to the practical interpretation given the contract by both parties Moss was authorized to sell for cash and upon credit to the customers within his territory, and to make collection of accounts so accruing, and it was his duty to make frequent reports of the business done, including both sales and collections made by him. The salesman’s profit or compensation consisted of the margin between the retail prices for which sales were made and the schedule
The assignments of error are too numerous for us to attempt their separate statement and consideration. So far as they raise material questions they may be grouped and considered in the following order:
The later contracts contain no statement or agreement of settlement of the prior dealings of the parties, and while the execution of the later instruments may justify some inference or presumption that their mutual claims up> to that date had been adjusted, we think there is no rule or principle authorizing the court to assume such settlement as a matter of law and withdraw the question from the consideration of the jury. There is nothing in the record to conclusively indicate the intention of the parties to accomplish a substitution
The holding by the Minnesota court in Watkins v. McCall, 116 Minn. 389 (133 N. W. 966), cited by appellee, is not necessarily inconsistent with the views we have here expressed. In that case the question considered was not a defense or counterclaim by the principal defendant, but rather the disputed liability of the guarantor for the conceded liability of his principal, which existed at the date of the last contract. Even in that ease the court, after referring to the precedents, says: “Within the rule stated it may be conceded, for the purposes of the ease, that, had this action been founded upon the guaranty attached to the second year contract, under which the departure complained of was permitted by the plaintiff, no recovery could be had. But the action is not founded upon that contract, and the rule stated has no application. ’ ’ In the ease at bar the action is based upon breaches of each and all of the contracts. As we have before suggested, each contract is complete, entire, and independent of the others. While the subject-matter is of like nature in all, it is not the same. Neither is expressed nor appears to be a substitute for the other, and as we have already said, we see no reason why, when sued upon either contract, the defendant should be held precluded from contesting his liability thereon by asserting any defense or counterclaim which would have been open to him had such contract been the only one ever existing between the parties.
The trial court, adopting the theory already mentioned that the act of the defendant in entering into the later contracts operated as a waiver of his right to recover for any alleged violation by plaintiff of the earlier contracts, excluded all testimony offered in support of such claim, and instructed the jury that it could consider only the claims, if any, based upon alleged breaches of the last contract of the series. The question thus presented has already been discussed, and for reasons stated we think the ruling and instruction erroneous to the prejudice of the defendant. In the same connection defendant, in support of his allegation that he had been wrongfully excluded from part of his territory and deprived of his books of account by the plaintiff, offered in evidence
Salina, Kansas, July 24, 1906.
Dear Mr. Moss: Your reports and letters have all been received and contents noted. I sent into the house about your Wilson county book, asking if I should return it as you requested and I waited until now for the answer. Paul writes: ‘We do not want you to turn over Moss Wilson Co. boob. We have had trouble enough with him in them and we want him to keep out of Wilson county altogether. When we get a new agent in Wilson we will let him collect the acts. You may so notify Moss. ’ I also wrote you that you would be expected to send into the company 70% of your cash income which you haven’t done but once since I wrote you. Now you are to understand that you keep out of Wilson altogether and send*254 us 70% of Montgomery county account or else we shall close our business with you at once. The company doesn’t seem to have confidence in you and this is the requirements. If I know of your being in Wilson county or collecting there, I shall at once close up your business and call on your surety for settlement. Just as soon as we can get an agent for Wilson, we will set him at work making collections there. If you can get Mr. Johnson, apply to me at once and tell me who his bondsmen will be and if all right I will send him a contract.
Your truly, K. T. Scotthorn.
Exhibit 83.
Salina, Kansas, July 26, 1906.
Mr. Moss — Dear Sir: I notice by your last report that your next post office would be Fredonia. I write to tell you, you must keep altogether out of Wilson county and do- no collecting there at all. I have sent letters to Independence explaining this. To fail in doing this is to lose your job at once. They refuse to return your Wilson county book or let you collect there. As soon as a new agent is procured book will be turned over to him for collection. Now this means, Moss, that you get out of Wilson at once and stay out or we shall call on your surety for a settlement.
Respt., K. T.- Scotthorn.
We are quite clear that the objection to this evidence should have been overruled. Scotthorn was the admitted representative of the plaintiff. Tie had power to settle with the defendant, to instruct him in the management of the business, and to employ other salesmen in his place. That in the course of this business he had obtained possession of defendant’s book or books is revealed by his letters, and that he was refusing to return them or to permit defendant to make sales in Wilson county, and in so doing was acting under instructions from plaintiff, is also made clear. This correspondence is quite evidently within the scope of the auditor’s apparent authority, and defendant was entitled to have them go to the jury. Generally speaking, a party is entitled to prove any fact alleged in his pleading and denied by his adversary.
For the reasons stated, the judgment and verdict will be set aside and the cause remanded for a new trial. The costs of this court will be taxed against the appellee. Reversed.