184 Mo. App. 157 | Mo. Ct. App. | 1914
Plaintiff is a manufacturer of shirts. Defendant was in its employ as a traveling salesman.
This action, originally for an amount claimed to be due plaintiff from defendant, finally took the shape of an action for an accounting between the parties. By the amended petition upon which the cause went to trial, it is claimed by plaintiff that defendant was employed by it as a traveling salesman to sell shirts manufactured by it, the contract entered into August 27, 1904, to go into effect October 1, 1904, and to terminate August 31, 1905. By the contract set up and pleaded by plaintiff, the plaintiff was to allow defendant a drawing account of an amount not to exceed an average of $300 per month, was to pay him a commission of six per cent on all shipments from sales made by him, and if it should appear at the end of the contract that defendant had earned more commissions than were necessary to cover the amounts of money drawn by him during the term of the agreement, the difference should be due and payable to him, whereas
The answer, upon which the cause was finally determined, after a general denial, set up several counterclaims.
Under the first counterclaim defendant charged that his compensation or commission for sales in certain territory specified was to be eight per cent of the gross selling price on all shirts of the price of or more than $4.50 per dozen, and six per cent of the gross selling price on all shirts of the price of $4.50 per dozen or less, the percentage to be calculated on all shipments of orders from persons doing business in the territory assigned to defendant, whether the orders were taken by defendant or came by mail or were sold in plaintiff’s place of business, except that no commissions were to be paid on goods shipped and not paid for by the purchasers, and that plaintiff had agreed that it would at all times be ready, able and willing promptly to make shipment of all orders taken by defendant under the terms of the contract and accepted by plaintiff. Alleging performance on his part, defendant avers that, under the terms of "the contract, plaintiff had shipped shirts of the value of $38,708.18, on which defendant was entitled to a commission of eight per cent, and had actually shipped other shirts to the amount of $14,073.45, on which defendant is entitled to a commission of six per cent, defendant claimed that plaintiff was indebted to him in the sum of $3941.06.
As a second counterclaim, setting up' what he claimed to be the contract for the payment of com
This was replied to and the cause coming on before the court, a reference was ordered.
The referee, having heard the testimony in the case, returned his report into court, recommending that plaintiff be denied a recovery upon its. petition and that defendant be allowed a recovery upon its counterclaim against plaintiff in the sum of $800.23. Plaintiff in due time filed exeptions to this report which were overruled and filing a motion for new trial which was also overruled, duly perfected its appeal to our court.
This being a case involving an involuntary reference under the statute, we have, in accordance with the holding of- our Supreme Court in cases of that kind, treating it as in cases in equity, read all the testimony. “Without reciting or reproducing it, it is sufficient to say that on the evidence the referee found that the real agreement between the parties rested" in part in writing and in part in parol, and that it is not denied that the contract as an entirety had in
On the second counterclaim, which relates to the violation of the exclusive right of defendant to sell in certain territory, the referee finds that this stipulation was violated and under this counterclaim he allows defendant a credit of $184.51.
The next contention disposed of by the referee under this second counterclaim is as to the allowance of commissions to defendant on what are called “mail orders” and “house orders,” taken, that is, orders accepted and filled by plaintiff, the credit for commissions on which is claimed by defendant. Finding plaintiff had received and filed such orders which had come in from the customers of defendant, or from his territory, for which defendant was entitled to credit, he allows defendant a commission on them, in the aggregate, of $135.18, disallowing the claim of defendant on this account for a larger sum claimed.
He further allows defendant a credit of $804.30 on account of commissions upon orders obtained from him from divers solvent customers, but which orders plaintiff was unable to and did not fill “because of its inability to keep the same in stock, although said customers were ready, able and willing to accept and pay for these orders.”
He disallows defendant’s claim for countermanded orders, that is, orders obtained by defendant but afterwards countermanded by the customers.
Summing up, the referee allows defendant a total credit in the sum of $4434.67, finds that he has received commissions amounting in the aggregate to $3634.44, and that there is now due and owing defendant from plaintiff the sum of $800.23. That is the
The learned counsel for appellant makes two assignments of error. First, that upon the whole record plaintiff should be allowed a judgment against defendant in the sum of $598.87, and that defendant should be denied a recovery upon his counterclaim. As before said, we have read over the testimony with great care and are entirely satisfied that the conclusion arrived at by the referee is amply supported by the testimony in the case, so that this assignment of error is untenable. .
The second error assigned is to the allowancé to defendant of commissions upon all orders solicited by him and sent in to the plaintiff company which plaintiff company could not fill because it did not have the goods on hand with which to manufacture the articles called for by the orders. Disposing of this point in his report, the referee holds that in the light of the testimony in the case defendant is entitled to these commissions. Of this the referee says: “To hold otherwise, would, I believe, be subversive of fairness and justice and enable plaintiff to take advantage of its own wrong. The plaintiff’s ability to fill defendant’s orders is no less important to him, than is defendant’s ability to obtain said orders to the plaintiff. The employer’s ability to fill such orders, is or ought to be implied, and I find abundant legal authority to that effect. [Lewis v. Atlas Mutual Life Ins. Co., 61 Mo. 534.] In the present instance defendant, in good faith and without violation of any selling instructions solicited and obtained orders from divers customers who were ready, willing and able to pay for the goods. It is not contended that plaintiff’s failure to execute these orders was due to any lack of confidence in the customer’s financial responsibility.”
We agree to this concise statement of the law as sustained, not only by our Supreme Court in Lewis
"Finding no reversible error the judgment of the circuit court in approving the finding of the referee, that judgment is affirmed.