193 Ind. 605 | Ind. | 1923
The appellee, who was the plaintiff below, recovered a judgment against the appellant for $6,769.30, found to be due him under the terms of a written agreement, signed by the parties, which was set out as the foundation of the alleged cause of action. After naming defendant as the first party and plaintiff as the second party, this agreement reads as follows: “That second party is hereby appointed confidential representative of first party for the counties of Knox and Sullivan, State of Indiana, and shall receive for
In addition to setting out such agreement, the complaint, as amended, alleged in substance that during certain years the defendant (appellant) was engaged in selling industrial and oil stocks of corporations in the State of Indiana; that plaintiff (appellee) resided in Knox County, Indiana, and had a large acquaintance with and a knowledge of the business and financial standing of many persons in that county and in the adjoining county of Sullivan; that by said contract in writing defendant appointed plaintiff as his confidential representative in said counties, he to furnish defendant and his agents with confidential information to be used by defendant in selling in those counties the stock of the said Standard Royalties Company; that, in pursuance to said contract, plaintiff acted as such confidential representative of the defendant in said counties and during said years “did render to defendant and the defendant’s agents for him such information, giving them from time to time during said period the names of divers prospective purchasers for said stock who lived in said counties, stating to defendant and his said agents the business and financial circumstances of the persons so named and such other information as plaintiff had of such persons; * * * that the information so given by plaintiff to defendant and his said agents was accepted by defendant and acted upon by
A demurrer to the complaint for the alleged reason that it did not state facts sufficient to constitute a cause of action, specifying in the memorandum that the alleged contract sued on was void for uncertainty, was overruled and defendant excepted. Defendant then answered by a denial and three special pleas, and plaintiff replied by a denial. The court made a special finding of the facts to the effect that the written contract was
It will be observed that the complaint did not contain direct averments stating what was involved in acting as confidential representative for the counties of Knox and Sullivan nor what information plaintiff agreed to furnish that is referred to in the written agreement as “such information”, nor just what he did furnish that is designated as “such as plaintiff had”, nor were facts directly averred to show that giving “all assistance asked of him” complied with the agree
The point made by appellant that the written contract was not sufficiently definite and certain, in and of itself, to support an action by one party for nonperformance by the other, is well taken.
A court will not undertake to enforce a contract unless by some lawful means it can ascertain and know just what the contract bound each party to do. Freed v. Mills (1889), 120 Ind. 27, 22 N. E. 86; VanSickle v. Furgeson (1890), 122 Ind. 450, 23 N. E. 858; Fairplay School Twp. v. O’Neal (1891), 127 Ind. 95, 26 N. E. 686; Casey v. Luken (1909), 43 Ind. App. 682, 88 N. E. 347; Ingram-Day Lumber Co. v. Rodgers (1913), 105 Miss. 244, 62 So. 230, 48 L. R. A. (N. S.) 435, Ann. Cas. 1913E 174; Shaw v. Woodbury Glass Works (1889), 52 N. J. Law 7, 18 Atl. 696; Van Slyke v. Broadway Ins. Co. (1897), 115 Cal. 644, 47 Pac. 689, 928; Page, Contracts §§87, 88, 95, et seq. But a contract of present employment is not one which the statute of frauds requires to be written out at length and signed by the parties, and where the parties have signed a contract of hiring that was indefinite and uncertain and have acted upon it until services have been performed by one party and accepted by the other, the court in which suit is brought to recover compensation may take into account all that was said and done in the matter of rendering the services, accepting them, and making payments in that behalf, so far as they may tend to explain the uncertainties in the written contract, or to supply omissions therein. Pennsylvania Co. v. Dolan (1892), 6 Ind. App. 109, 115, 32 N. E. 802, 51 Am. St. 289; American Quarries Co. v. Lay (1905), 37 Ind. App. 386, 389, 73 N. E. 608; Cox v. Baltimore, etc., R. Co. (1913), 180 Ind. 495, 505, 103 N. E. 337, 50 L. R. A. (N. S.) 453. Applying this rule, a major
The special finding, as above set out, recited no facts supplementing the terms of the written agreement, except only that plaintiff at all times gave defendant and his agents all information and assistance demanded of him, and that defendant paid him $630 of commissions; though it recited the conclusion which a statute (§376 Burns 1914, §370 R. S. 1881) authorizes to be pleaded only on condition that “the facts showing a performance be proved at the trial”, as follows; “said plaintiff did at all times perform each and all of the terms, conditions and stipulations on his part to be performed, as defined in said contract.” But while the statute cited above and another statute (§343a Burns’ Supp. 1921, Acts 1915 p. 123) permit a party to plead facts by alleging conclusions from which they-may be implied, there is .no authority for any such substitution in a special finding. The very purpose of a special finding is to set out the facts from which all conclusions are drawn, in order that it may appear whether or not the conclusions are well founded. On proper request the court “shall first state the facts in writing, and then the conclusions of law upon them.” §577 Burns 1914, §551 R. S. 1881. And the lack of stipulations in the written contract as to what the plaintiff should do to earn his commissions could not be supplied by a mere conclusion that he performed his part. No facts were found as to what plaintiff did, other than giving such information as was asked for; nor do'es the finding state what time was consumed in doing whatever was done, nor the value of the services rendered,
Neither did the finding recite that any of the shares sold had been paid for, whether by payments “received in cash by first party”, or otherwise. The exception to the conclusion of law that plaintiff was entitled to recover $6,769.30 was well taken and should have been sustained. The evidence wholly failed to show that any sales of stock had been made for which the purchase money had been “received in cash by first party from the territory named.” There was some testimony that each of five men, other than defendant, had sold stock to certain persons. But there was not the slightest evidence, that defendant received payment for any of it, while it did affirmatively appear that, for some of it, the individuals who sold it received notes, which they exchanged for paper of a bank in which plaintiff was an officer, less commissions claimed and received by him. Defendant, without mentioning any names of salesmen, said that some stock sold to John M. Allen was “brokerage stock that I did not sell him at all. He bought stock from brokers” who went out and picked it up. And he added that “they were my salesmen.” But there was no evidence whatever assuming to show how much was sold to John M. Allen, while plaintiff testified that more than $163,000 worth was sold in Knox and Sullivan counties to persons bearing other names, and there was no evidence at all tending to show that defendant sold it, and no evidence to show that the persons who sold any of it were “salesmen” employed by defendant or agents authorized to represent him except by testimony concerning statements made by the men at the time the stock was sold,
The mere fact that they were selling stock of the Standard Royalties Company, and that defendant was a director and fiscal agent of that company, would not necessarily make them his agents, nor bind him to pay commissions on stock which they sold, unless they made the sales on his behalf and even then, he could not be required to pay commissions unless he received payment for what they sold.
This being an action for an accounting of commissions that were not to be paid in a fixed amount nor at fixed times, but upon the contingency that payment for the stock sold should have been received in cash by the defendant, as to which sales and receipts a discovery was asked, a demand was necessary before suit, which necessity plaintiff recognized by alleging a demand.
The plaintiff testified that he made no demand before suit was commenced, and his attorney testified that he had charge of this matter for plaintiff, and in answer to the question “Did you write a letter to D. Belmont Lester, concerning the claim sued on?” answered, “Yes, sir, I wrote two letters”; and stated that he did not recall when, but it was before suit was filed; that the attorney for defendant had said he did not have the second letter, and had no information concerning it,
For lack of proof that those who sold the stock in Knox and Sullivan counties for which plaintiff had not received commissions were agents of the defendant, or that such stock was ever paid for, or that the demand written by plaintiff’s attorney was received by- or communicated to defendant, the decision is not sustained by sufficient evidence.
The judgment is reversed, with directions to sustain defendant’s motion for a new trial.
Myers and Travis, JJ., concur in the reversal of the judgment solely upon the ground that the conclusion of law is not sustained by the special findings of facts, in that the findings fail to show that the stock was paid for in cash.
Willoughby, C. J., not participating.