Merriman v. McCormick Harvesting Machine Co.

96 Wis. 600 | Wis. | 1897

Winslow, J.

There was no very serious dispute as to the-facts of the case, nor is there any very material difference -between the findings of fact made by the referee and those made by the circuit judge (except with regard to the failure to fill the order for binding twine, which'will be considered later); but there was a radical difference between the legal •conclusions resulting from the facts. The referee was of opinion that the plaintiffs were entitled to recover their full •commissions upon all machines for which they had taken ■orders, except where they afterwards furnished a different machine; while the circuit judge concluded that they were •entitled to no compensation for their services in obtaining the orders, save for the one machine delivered before the ■cancellation of the contract.

We find ourselves unable to agree with either conclusion. We think, under the provisions of the contract, the plaintiffs were entitled to recover the reasonable value of their .services in obtaining the orders for machines which were afterwards actually filled with. McCormick machines, and no more. The reason for this conclusion we will briefly state. The contract provides for a certain commission upon the sale of each machine, which is to be earned, not by obtaining the order alone, but by receiving and housing the machine, setting it up and running it, instructing the purchaser, receiving and transmitting the money or notes therefor, and by rendering other services connected with the sale. Manifestly the contract is entire as to each commission, and is not earned except by the performance of all the requirements. Furthermore, there is a special provision that commissions shall only be paid on machines sold and settled for, and none shall be paid on orders not filled. Hau Ui& plaintiffs brought action for their commissions after taking the orders and prior to the cancellation of the contract, it is very certain that they could not recover them, because '■■hey had not been earned, nor could they have recovered upon qxiantium meruit, because the contract is an entire contract as to each commission. Now the theory upon which the referee allowed the entire commission was that by the cancellation of the contract the defendant had rendered it impossible for the plaintiffs to carry it out, and hence that they ought to recover the full commission, because they were ready to carry it out, but were prevented by the defendant from doing so.

The well-settled rule is that when a contractor’s performance is stopped by the fault of the employer, he may recover upon quantum meruit for what he has done, and also may recover damages for being prevented from completing the work. 2 Suth. Dam. (2d ed.), § 113. But this second element of damages, i. e. the damages resulting from being prevented from completing the work, are plainly given because of the wrongful stoppage of the work. Where the stoppage is absolutely rightful and in strict accord with contract provisions, there can be no damages, because damages do not arise from the proper exercise of a legal right. Now in the-' present case the parties bad agreed that the defendant might at cmy time end the contract, and take into its possession all orders, notes, accounts, moneys, machines, or, other property of the defendant in the hands of the plaintiffs. The provision is certainly very drastic, but it is admittedly a part of the contract, and no claim of fraud or mistake is made with reference to it. Under these circumstances the court’s duty is simply to construe it. It was put in the contract with a definite purpose, and that purpose plainly was to give the-defendant power to end the agency at any time and place’ the entire business in other hands. This power must be reasonably construed. It should not be construed as depriving the plaintiffs of reasonable remuneration for their services' already rendered in obtaining orders which are afterwards-filled with McCormick machines, but it certainly must be construed as authorizing the defendant lawfully to end the agency at any time, and thus rightfully to prevent the earning of the full commissions.' It was certainly the duty of the plaintiffs to surrender up the orders they had taken to the defendant when the contract was canceled. Not only does the contract provide that they shall do so, but it further provides that they shall not retain any of defendant’s property in their hands as security for commissions. We do not think, however, that, where it can be shown that any such order was afterwards actually filled with a McCormick machine, this failure of duty should prevent the plaintiffs from recovering the reasonable value of their services in*obtaining the order. As it cannot be ascertained from the evidence just how many of the orders taken were afterwards filled with McCormick machines, nor what the reasonable value of the preliminary canvassing and procuring of such orders was, further testimony must needs be taken Upon these questions.

We see no need of disturbing the conclusions of the cir-ouit court as to the binding twine. While we think that the contract was a binding one, made so by the delivery and ac•ceptance of a part of the goods, still the finding that the price of twine remained unchanged from December, 1892, until April 1, 1893, is founded upon sufficient evidence, and we shall not disturb it. This being the case, the refusal to fill the order for a car load of twine, made March 23, 1893, produced no damage.

It will not be necessary to retry the case. The court below can ascertain by additional testimony, taken either in open court or before a referee, how many of the orders taken were filled with McCormick machines, and what was the reasonable value of plaintiffs’ services in obtaining such •orders. For this sum the plaintiffs will be entitled to credit, as well as for the sum of $48.18 for freight advanced. The defendant will be entitled to credit for $57.47, being for expenses of expert canvassers who assisted the plaintiffs. The party having the greater credit will be eutitled to judgment for such excess. The case will not be reopened further than .above indicated.

By the Court.— Judgment reversed, and action remanded .for further proceedings in accordance with this opinion.