83 S.E. 487 | N.C. | 1914
This action was brought to recover the amount alleged to be due under a contract between the parties, by which defendant employed plaintiff as its traveling salesman in parts of North Carolina and South Carolina, the territory being designated by reference to a map described therein. Plaintiff was to receive 2 3/4 per cent of commissions on all goods sold by him and shipped into his territory; to have a drawing account or guaranteed monthly salary of $150, payable at the end of each month, and to be paid all his necessary traveling expenses, the salary to be paid during the time he was at work in his territory and the contract to continue in force for the period of one year. The contract was dated 18 August, 1911, and was, by mutual consent, terminated 27 July, 1912, plaintiff having resigned his position on the latter date. Plaintiff received his commissions, salary, and expenses from time to time during the performance of the services required of him under the contract, and now claims that on 27 July, 1912, when he resigned, that he had sold goods for the defendant to responsible purchasers, which were thereafter shipped to them by defendant, amounting in value, according to ruling prices of defendant, to $46,528, the commission on which, at the stipulated rate, is $1,285.51, for which he demands judgment. The parties disputed with each other as to the true amount due the plaintiff on account of the transactions *323
between them, and on 27 July, 1912, they came to a settlement, in which defendant promised to pay the agreed commission on all sales of goods which had been made by plaintiff in his territory, and which had not then been shipped by defendants, but which were shipped afterwards, the same to be paid when the goods were so shipped, and it is on the sale of these goods, as stated, that he claims his commission. The court submitted one issue to the jury, as to the amount of defendant's indebtedness to plaintiff, and they returned a verdict for $375.50. Judgment was thereupon rendered, and the defendant appealed.
It appears that, after the pleadings had been read and the jury impaneled, refendant [defendant] requested the court to order a reference of the case, which was refused, and to this the first exception was taken. The motion for a compulsory reference should have been made before the (282) impaneling of the jury. It was due then, in the regular order of procedure, and by passing that stage in the trial without acting, the defendant waived his right; he having impliedly accepted the method of trial by jury, instead, by his silence. Such motions must, of course, be submitted in apt time. A like motion was held to have been properly refused, for this reason, in Hughes v. Boone,
It was competent for the plaintiff, while testifying in his own behalf, to state the quantity of goods sold by him, in order that it might be subsequently shown how many of them had been shipped under his contract and settlement of 27 July, 1911; and for a like reason it was not improper that he should be permitted to refer to section 4 of the complaint and answer to make his testimony intelligible. They were preliminary matters, and the ruling of the court did not make the sections, so referred to, evidence in the case. We see no objection to the same witness stating what he claimed was owing by the defendant, and his explaining the items. Nor was there any valid objection to his stating the items which the defendants had wrongfully charged to him or debited to him with on *324
their books, as something had to be deducted from the amount they had promised to pay him. It was necessary that this should appear, in order to ascertain the correct balance. All this covers the second, third, fourth, fifth, and sixth exceptions. As to his being allowed to state the amount of commissions on $103,000 at 2 3/4 per cent, if he had answered it, we cannot see what harm would have resulted to defendant; but his answer was not responsive to the question, and there is no exception to the answer, and therefore, on this ground, the seventh exception must fail. Catonv. Toler,
This brings us to the consideration of the question, and the pivotal one in the case, whether the settlement of 27 July, 1912, is binding upon defendant. We cannot see why it is not. The parties had disagreed as to the balance, if any, due the plaintiff under the contract, and for this reason they came to an accounting, for the purpose of settling the differences between them. This is a sufficient consideration to support the settlement and the agreements or covenants entered into as a part thereof.
In the recent case of Burriss v. Starr,
Chief Justice Nash, said further, in Mayo v. Gardner, supra: "The prevention of litigation is a valid and sufficient consideration; for the law favors the settlement of disputes. Thus, a submission of claims and demands to arbitration is binding, so far as this, that the mutual promises are a consideration, each for the other. 1 Parsons Contract, 364; Com. Dig., `Action on the case on Assumpsit,' A 1, B 2. In Keson v. Barclay,
The eighth and last exception is equally untenable. The judge could not direct a verdict upon the evidence, as requested to do. It was for the jury to say what was the balance due the plaintiff. There was evidence, we think, upon which they could have found a larger balance than the one indicated in defendant's prayer. Anyhow, there was no ground for such a peremptory instruction, and, besides, defendant could not select a part of the evidence, and base a request for a charge upon that alone. It must be considered as a whole. It appears that all of the testimony was not stated in the record. But, in any view, the instruction would have been improper as invading the province of the jury.
After a careful examination of the entire case, we find no reason for complaint on the part of the defendant. The verdict seems to have been a very moderate one, as we construe the evidence.
No error.
Cited: Ferebee v. Berry,
