8 S.D. 579 | S.D. | 1896
Plaintiff, a dealer in agriculural implements, brings this action against the defendant, a manufacturer of threshing machinery, to recover certain commissions on sales made by other persons, as damages for an alleged violation of a contract whereby it is claimed that plaintiff became tbe sole agent, with exclusive authority to sell said machinery within the territory mentioned in the complaint. At tbe conclusion of plaintiff’s evidence tbe court directed a verdict for tbe defendant, and this appeal is by tbe plaintiff, from an order overruling a motion for a new trial. ‘
By the terms of tbe written agreement, appellant was constituted a soliciting agent of respondent for tbe purpose of obtaining purchasers and making sales of threshing separators,
At the trial, after prepondering several questions to appellant, to which objections were interposed and sustained, his counsel made the following offer upon the record, which was refused by the court: We offer to show by this witness that at the time of entering into the contract he had a conversation with Mr. Neel, the agent of the company, who came here to make the contract, and who signed it for the company, in which Mr. Neel said that the contract provided for the exclusive agency for the sale of the threshing machinery specified therein, in Minnehaha county, excepting trade tributary to Jasper, and that Mr. Roberts should receive from the company a commission of 20 per cent on the sale of all goods, excepting extras and repairs, made in this territory, no matter by whom made;
If appellant’s right to sell in certain territory is exclusive, there is certainly nothing in the contract by which the amount of damages, in case of a breach thereof, is anticipated, and fixed at 20 per cent of the purchase price of machinery, by whomsoever sold, and the true measure of damages is an amount which will compensate appellant for the proximate detriment sustained thereby. Comp. Laws, § 4581. Without anything before the jury as a basis for the computation of compensatory damages, and in the entire absence of evidence tending to show that in any event appellant would have made either of the sales complained of, or that he performed any act with reference thereto, mere proof of the violation of the contract