155 Mich. 441 | Mich. | 1909
Plaintiff sued to recover commissions claimed to be due to him under a contract reading:
“Memorandum of agreement, made this 30th day of September, 1905, between the Kalamazoo Corset Company, of Kalamazoo, Mich., of the first part, and E. T. Muir, of Detroit, Mich., of the second part. The said Kalamazoo Corset Co. agrees: (1) To employ the said E. T. Muir as superintendent of all the retail departments owned by the said Kalamazoo Corset Co., or that shall hereafter be acquired during the life of this contract, it being understood that said E. T. Muir is to have general supervision of said departments. (2) To pay said E. T. Muir as compensation for his services a commission of five per cent, on the gross sales made by all of said retail departments now owned by the said Kalamazoo Corset Co. or that may be*443 acquired during the life of this contract. Said commissions are to be due and payable monthly as earned. In consideration of the above the said E. T. Muir agrees: (1) To act as superintendent of the retail departments of the Kalamazoo Corset Co., and to devote his entire time to promoting the interests of said departments. (2) To visit said departments as often as directed by the said Kalamazoo Corset Co. (3) To pay all of his expenses incurred while acting as superintendent of the retail departments for said Kalamazoo Corset Co., it being understood that the commission named above is to cover salary and expenses. This contract to be in full force and effect from November 1, 1905, to January 1, 1907.”
Defendant pleaded the general issue with notice of set-off. The jury returned a verdict for the plaintiff for $1,419.85, and judgment was entered on the verdict. Defendant was refused a new trial.
It appears that defendant had employed plaintiff as a traveling salesman for the period of one year from November 1, 1904. The terms of the agreement are:
“(2) To pay the following commission on sales made by Mr. Muir. Five per cent, on goods sold for $4.50 per dozen and less. Ten per cent, on goods sold for $6.00 per dozen to $15.00 per dozen. Twelve and one-half per cent, on goods sold for $15.00 per dozen and upwards. (3) To guarantee to Mr. Muir a salary of $150.00 per month and his traveling expenses.' When his commissions amount to more than the above-named salary and traveling expenses then Mr. Muir is to pay his own expenses and work on a strictly commission basis. (4) While Mr. Muir is on a salary to pay his actual and necessary traveling expenses incurred while on the road while promoting their interests, such as car fare, bus fare, hotel bills, etc. Said expenses to be allowed only when presented in proper form giving items, dates incurred, places, etc. (5) To allow Mr. Muir to draw $25.00 per week to be applied on his salary and commission, it being understood that the balance of his commissions and salary are to be applied on the account mentioned below. In consideration of the above the said E. T. Muir agrees: (1) To act as traveling salesman for the said Kalamazoo Corset Co., and to devote his entire time to promoting their interests as directed by them. (2) While working on a salary, to ren*444 der an itemized weekly expense account at the end of each week, covering all money actually expended in behalf of said Kalamazoo Corset Co., showing the amount of hotel bills in each town, fare between towns, giving names and dates and such other information regarding each item as may be requested by said party of the first part. (3) To take good care of all property placed in his charge, such as samples, sample cases, reference books, etc., and to turn over such property in good condition to said Kalamazoo Corset Company or its representative whenever so requested by said Kalamazoo Corset Company. (4) He also authorizes the said Kalamazoo Corset Company to charge to his personal account the sum of 11,103.29, the amount standing on the books of said Kalamazoo Corset Company growing out of the old E. T. Muir & Co., and Her Ladyship Corset Co. matters, ard agrees to pay the balance of his commission and salaiy over and above the $25.00 per week mentioned above to apply on his account. It is mutually understood and agreed: (1) That the territory to be covered by the said E. T. Muir is to be arranged later. (2) That this contract may be canceled by either party by giving the other party a thirty days’ notice with the understanding that such notice does not affect Mr. Muir’s agreement to pay the $1,103.29 mentioned above.”
The principal items of defendant’s set-off, disputed by plaintiff, arise out of the relations and dealings of the parties during the period covered by the terms of this contract. The sales made did not produce a sum equal to the monthly guaranty and expenses. After February 1, 1905, plaintiff did not render an itemized expense account. He claimed that the requirement was waived by defendant. The state of plaintiff’s account with defendant on November 1, 1905, when the second contract, the one in suit, took effect, was that plaintiff appeared to be owing defendant $2,102.27, the account including the charges to plaintiff of $1,103.29 for indebtedness which by the terms of the contract was to be charged to him, $997.11 for money advanced and not accounted for, and an item of $1.87 for merchandise. Stated in another way, it appeared that plaintiff had been paid during the
Counsel agreed concerning the state of various accounts, and at the conclusion of the trial presented, respectively, for the use of the court and jury, computations showing the claims of the parties. These computations are:
Total commissions earned by Muir on last contract...............................-..........$9,918 62
Total commissions received....................__ 8,294 25
$1,624 37
Less the telephone charges -..................138 05
$1,488 32
Allowance made by Muir to settle old expenses... 150 00
$1,336 32
Interest, 15 months 5 per cent____________________ 83 53
Total claim of plaintiff-.......________________$1,419 85
The defendant claims he paid during the contract (first contract)--------------------------------$2,970 00
That the samples were not returned______________ 39 16
$3,009 16
Salary and expenses............................. 1,972 89
Balance-___________________________________, — .$1,036 27
Old account_____________________________________ 1,103 29
Balance due from plaintiff at the beginning of second contract...............................$2,139 56
Balance commission due (on second contract)____ 1,266 20
And that makes a balance due to the defendant according to their figures---------------------- $873 36
It will be noted that in the computation made for the
As to the matters of set-off, defendant had the burden of proof. There was sharp conflict of testimony concerning many of the facts it sought to establish. The finding of the-jury was supported by testimony, and, unless some controlling rule of law forbids it, must stand. The con' tention that the testimony discloses no consideration for the alleged cancellation of the balance of plaintiff’s indebtedness to defendant is without merit. It is not the
It may be admitted that as to the expense account the defendant had sustained the burden of proof when it showed the amount of money paid to plaintiff. The duty of an agent to account to his principal for moneys of the principal coming into his hands is not disputed. Mechem on Agency, § 528; Moyses v. Rosenbaum, 98 Ill. App. 7; Wolf Co. v. Salem, 33 Ill. App. 614. And it may be said, also, that an account, in cases like the present one, is a detailed statement. 1 Bouvier Law Diet. p. 63. It is clear, too, that waiver of weekly itemized statements of expenses is not a waiver of an accounting at some time. Plaintiff’s testimony goes much further than this. It is to the effect that he declined to render a detailed account of his expenses; that thereafter money was sent to him, as usual, with the understanding that he should not render such an account, and that in the end he acquitted himself to the satisfaction of his principal. In addition to this he testified, over objection, that he actually expended about $1,600 more than he had rendered itemized statements for. Error is assigned upon the ruling admitting this testimony and upon the refusal of the court to give certain requests to charge, neither of which requests took
We do not agree with counsel for appellant when they say the positions taken by plaintiff with reference to his expense account were, first, that he had acquitted himself by agreement; and, second, that he had actually disbursed the total amount of unaccounted-for expense money. His contention was that he had been acquitted by his principal. He did not pretend to have kept an account, and in stating that he had paid out for expenses about $1,600 he was not rendering an account. It will be assumed, from the fact that he was willing to deduct $150 from this amount, that he regarded some items as not properly chargeable to defendant. Indeed he admits that he used $50 otherwise than in the business of his principal. There may be ground for just complaint concerning the manner of submitting this matter to the jury, but the scope of inquiry in this court is limited by the suggestions made to the trial court and the errors assigned. We have considered all of the errors assigned and argued, and are
Judgment is affirmed.