164 Iowa 277 | Iowa | 1914
It is agreed that defendant was plaintiffs’ agent in the state of Texas for the sale of certain vehicles made by plaintiffs, and the real controversy is over the nature of that agency, or rather upon the amount of salary and commission to be paid. Defendant admitted that he had made
Dec. 26, 1908. W. A. Laybourn, Austin, Texas: Letter received, keep men and sell all vehicles you have on hand. See letter. S. M. Co.
December Twenty-Sixth, 1908. Mr. W. A. Laybourn, Austin, Texas — Dear Sir: We have just telegraphed you as per the inclosed copy of telegram. Now in regard to closing out, we want you to close out all the vehicles you have on hand and' we want you to keep the teams and men until you do get them closed out, but as fast as you can we want you to let the men go to the new superintendents. Mr. E. H. Spaulding has written you in regard to this, and we expect Mr. D. F. Warren will be down there in the near future. I will write you more fully in regard to this a little later. Yours very truly, Spaulding Mfg. Co., by H. W. Spaulding.
The plaintiffs’ reply to the last counterclaim was in substance as follows: .
That the claim is for work and business that he did in the selling and delivering of buggies under the contracts involved in this case, other than that alleged in said count, and was for labor and business that he did in completing sales made under said other contracts for which he has been fully paid by the commissions of $2 per vehicle, and was labor and business performed by him after the termination of the contracts, because he was unable or refused sooner to complete the business which had been done under the said contract, and that the telegram and letter set out in the counterclaim have no reference to any new contract or employment or any new labor or business, but only requested that the defendant finish up the business for which he was receiving $2 commission for the vehicles sold and delivered by him.
The primary controversy is over the nature of defendant’s initial contract. He claims that he was to have a commission of $2 for each and every vehicle sold by him, his agents, or by plaintiffs themselves, through other agents, or from the factory direct, to any person within the state of Texas; while plaintiff insists that his compensation was to be based upon sales made by defendant or through his agency alone. In addition to this, there is a controversy as to the nature of defendant’s employment, as pointed out in the answer already stated. The jury evidently found with defendant on both of these issues. While something is said in argument regarding the sufficiency-' of the testimony, the proposition is not argued, and we give it no further attention. The main points relied upon for a reversal are based upon misconduct of counsel and erroneous rulings said to have been made by the trial court.
And another of plaintiffs testified to the same facts, and also to the effect that defendant never at any time, during any of their controversies before suit or after, until the filing of his substituted answer and counterclaim, suggested that he had'an oral contract or was claiming on anything but his written une, the latter of which the trial court thought did not support the defendant’s contention. This latter witness also testified on cross-examination as follows:
Then he (defendant) told me in regard to a contract with IT. W. Spaulding in former years. He stated that, although he had made a verbal agreement at the time he signed the written contract, that he just thought he would ignore that, or he might ignore that and abide by the written contract and put the Spaulding Manufacturing Company up a tall tree, and collect $2 a job on jobs that he had nothing to do with himself in Texas.
When defendant was called in rebuttal, the following record was made:
At the time and prior to the time the substituted answer and cross-petition in this case, which is marked Exhibit No. 20 Robison, and the original answer and cross-petition in this case, which is marked Exhibit A8 Robison, I discussed this case with my attorneys. Q. Did you at that time tell your attorneys all of your causes of action and all your defenses
It will be noticed that most of plaintiffs’ objections were sustained, and that about all which the witness was permitted
At best we may only consider the admission made by the defendant’s counsel in his affidavit, which reads as follows:
This being the record, there was no such misconduct as to justify our interference with the discretion lodged in the trial court. Hannestad v. Railroad Co., 132 Iowa, 232; George v. Swafford, 75 Iowa, 491; Hammond v. Railroad Co., 49 Iowa, 450.
IV. The only other proposition relied upon grows out of the following, as shown by the record:
The witness being examined was the defendant himself. Some time afterward the following occurred in examining the same witness:
Q. Now, Mr. Lyon asked you about a conversation that took place between you and the plaintiffs just before you brought your suit. You may now tell the jury what that conversation was; what was said by them relative to it. Mr.
No complaint is made of the rulings of the trial court, save the last observation that nobody was hurt by the matter; but it is contended that counsel, with knowledge of the fact that the testimony was incompetent, or after a ruling that it was inadmissible, persisted in asking his questions and keeping the matter before the jury, and finally stated in the presence of the jury that he got just what he was after. That this latter matter M'as the fact that an offér of compromise and settlement had been made is reasonably clear from the record made.
Singularly enough, on the same day that plaintiffs filed their reply to the substituted answer, and when the case was called for trial, defendant in open court offered to confess judgment in plaintiff’s favor for the sum of $1,500 and costs, which plaintiff refused to accept. ' No reference was, of course, made to this offer, and it is referred to at this time simply to show that it was difficult for plaintiff’s counsel to meet the offer shown to the jury as to plaintiffs’ offer to compromise, although the jury were told not to consider it. The case seems to fall within the rule announced in State v. Roscum, 119 Iowa, 330 ; Welch v. Insurance Co., 117 Iowa, 394; Hood v. Railway Co., 95 Iowa, 331; Henry v. Railroad, 10 Iowa, 233; State v. Helm, 92 Iowa, 540.
The sting was quite as effective as if addressed to the jury in argument and, if counsel had there said that plaintiffs had offered to compromise and settle for $2,500, the poison would have stuck, and the same ruling made by the
The court below correctly held that the offer of settlement was inadmissible. Rudd v. Dewey, 121 Iowa, 454, and cases cited. The authorities relied upon by defendant (Milhollen v. McDonald Mfg. Co., 137 Iowa, 114; Kassing v. Ordway, 100 Iowa, 611; Bayliss v. Murray, 69 Iowa, 290) do not hold to the contrary.
We dislike to reverse the case on this ground, but counsel are required to keep within due bounds, and all oral offers of settlement and compromise should be kept secret just as much as a regular offer in open court, and neither party should have any advantage thereof or be made to suffer therefrom. The statute expressly says that a regular offer to confess judgment shall not be mentioned during the trial, and an oral offer to settle and compromise should have the same sanctity.
For the error pointed out, the judgment must be reversed, and the cause remanded.
Reversed and Remanded.