158 Mich. 283 | Mich. | 1909
Plaintiff, a resident of the State of Iowa, recovered in the Wayne circuit court a judgment against defendant, a resident of Detroit, for certain money paid and losses sustained under a certain contract between the parties. The defendant in 1905 caused to be inserted in newspapers in several States an advertisement reading as follows:
“ Man, trustworthy. To manage branch office and distributing depot for large manufacturer; salary to start with $1,500 first year, and extra commissions and expenses. Applicant must have good reference and $1,000 cash. Capital secured, experience unnecessary. Address Manufacturer, 31 West Atwater Street, Detroit, Michigan.”
Plaintiff saw this in the Chicago Record-Herald, and on September 35, 1905, answered it, stating his business experience, habits, present occupation, and ability to give references, and asked for full particulars. Defendant replied at length on September 37th, using the trade-name “The Elysian Manufacturing Co.,” under which he was doing business. This letter contained statements that—
“It is our intention to open an office and distributing depot in your locality at an early date, and to enter into a business arrangement with a trustworthy and responsible man to manage the business. * * * We are willing to enter into a permanent arrangement with a satisfactory party, and will pay $1,500 per year, payable monthly for the first two years, and to this we will add a commission
Other letters followed, in one of which from defendant was inclosed a booklet, which the letter stated was “descriptive of part of the goods which we manufacture, and which will give you some idea of our line.” Another letter stated:
“Inasmuch as we are the largest exclusive manufacturers of our line of goods in the country, we are in position to meet any and all competition.”
The description given in the booklet reads:
“Quality. Our perfumes and floral waters are equal to the highest standard of such goods in this country or Europe. We manufacture all the leading flower odors, and after ten years’ experience and successful manufacturing, we challenge comparison with any other like goods without regard to price.”
At the invitation of defendant plaintiff came to Detroit and went to defendant’s office. Plaintiff claims that he was met by a man named McGuire, who stated that defendant was busy, and could not see him, but he could attend to the business just as well; that during the conversation which ensued, relative to the business, he asked McGuire as to the quality of the goods manufactured, and he produced a copy of the booklet, saying, as he referred to the page, that it described the quality of the goods they manufactured; that he was taken into Mr. Cook’s office arnd introduced to him by McGuire, who did practically all the business, even to preparing the con
There is a sharp dispute between plaintiff and defendant as to what occurred at this time. McGuire was not produced as a witness.
The contract is as follows:
“ This agreement, made and entered into this tenth day of October, 1905, by and between the Elysian Manufacturing Company, party of the first part, and J. W. Ward, party of the second part, witnesseth:
“That the parties hereto, after a personal interview, and after a personal examination by said second party, of the goods manufactured by said first party, have embodied the result of all previous and present negotiations into this writing, said agreement being as follows, to wit:
“(1) Said first party hereby engages the said second party in the capacity of general sales agent, to conduct a sales agency in the city of Des Moines, State of Iowa, for a period of two (2) years from the date that the sales office is opened for the second, as hereinafter provided for, and for and in consideration of the faithful performance and fulfillment of each and all of the several agreements herein contained and agreed to between the parties, the party of the first part agrees to engage the said second party for a period of twenty-four (24) months, and agrees to pay the party of the second part one hundred and fifty dollars ($150) per month, as hereinafter provided, and give five per cent. (5%) additional commission on all sales of said office during the continuance of this contract.
“ (2) The party of the first part agrees, at its own expense, to open and fit up an office or salesroom for the use of the party of the second part, at said city, in which the party of the second part shall carry on said business as herein provided for, and the party of the first part further agrees to supply stationery and circulars for the proper handling of the business. Also to sell and deliver such stock as it manufactures and sells as the trade of said office may require from time to time at forty per cent. (40%) discount from retail list prices, and to supply merchandise for all moneys received from said second party, and to instruct said second party in the details of handling the business, until he is sufficiently instructed in the estimation of said first party.
“(3) At the expiration of the term and fulfillment of
“In consideration of the foregoing and subsequent agreements, the said second party agrees to the following:
“(1) The said party of the second part will and does hereby engage and agrees to become general sales agent for the goods manufactured and sold by the party of the first part, as heretofore stipulated, for a term of two (2) years, and that he will devote his whole time and. efforts to advancing his success of the business, and to satisfactorily perform the duties herein required of him, dealing honorably with the party of the first part, the public, and all persons with whom he may have business relations.
“ (2) That the said second party will supply no stock to agents, dealers, nor other purchasers from him that will in any way demoralize the trade, and only for cash with orders, or thirty (30) days’ time, if secured by the indorsement of some financially responsible party, or on some satisfactory letters of credit. Said second party is to use due care and diligence in looking up the standing of people to whom goods are sold on credit, and then, if any losses arise, these losses are to be charged as an item of expense to the business.
“ (3) Said second party further agrees to carry a stock of merchandise amounting to one thousand six hundred and sixty-six dollars and ($1,666.66) at list prices, which’ shall be an assortment of the various goods manufactured or handled by the said first party, such stock and assortment to be selected by the party of the first part,' or to be jointly selected, and to be billed to said second party at forty per cent. (40%) discount from retail prices, amounting to one thousand dollars ($1,000) net.
“ (4) The party of the second part further agrees to furnish the said first party with daily and weekly reports, and, at the end of each month, to forward to the party of the first part a report of all business done during the month, giving the names and addresses of any and all agents appointed, a full and accurate statement of expenditures, amount of goods sold, of money collected, and
“(5) As the permanent success of this business will depend upon a reasonable amount of merchandise being sold, it is understood and agreed that the sales of each month shall amount to five hundred dollars ($500), which shall be considered the minimum amount of business necessary to constitute the fulfillment of this contract. If the sales of any month shall not amount to the minimum amount, namely, five hundred dollars ($500), and during the succeeding months sales should be in excess of the minimum amount to make up an average of five hundred dollars ($500) per month, this contract will thereby be fulfilled in this respect by the party of the second part.
“ If the sales at the end of the first year shall not have averaged five hundred dollars ($500) per month, the party of the first part reserves the right to cancel this contract, if it so desires, and upon such cancellation, shall repurchase from said second party, all stock that he may have on hand, purchased from said first party, at prices originally charged.
“All sales to be made to agents, demonstrators, and dealers at a discount of thirty-three and one-third per cent. (33£%) from list of retail prices.
“ (6) It is mutually understood and agreed between the parties hereto that the said second party shall have the right and authority to collect all moneys for business done through said office, and that at the end of each month, after deducting from the receipts of this office, the amount of his own remuneration, to wit, one hundred and fifty ($150), and the necessary expenses, such as rent, necessary office help, postage, advertising matter, office sundries, commission, salary and commission to salesmen and demonstrators, etc., he shall remit with his monthly account the cash balance to said first party at its offices in the city of Detroit. When such remittance is received, the party of the first part will then replace all the stock sold during the previous month by the party of the second part, as herein provided, without additional charge or expense to said second party, and in case the minimum amount of business required to be transacted shall not be sufficient to pay the necessary expenses of the office as herein provided for, the cost of replacing stock, etc., such deficiency shall be made good by said first party at the end of each month.
“ (7) It is further mutually agreed by both parties
“ In witness whereof, the parties of this contract have hereunto set their hands and seals in duplicate the date and year first above written.
“The Elysian Mfg. Co.,
“Per C. R. Cook. [Seal."
“J. W. Wabd. [Seal.]
“Received of J. W. Ward, one thousand dollars (|1,000) in payment for stock as per above contract.
“The Elysian Mfg. Co.,
“Per C. R. Cook.”
Plaintiff returned to his home in Iowa, and soon after, by appointment, met the accredited representative of defendant, who by his written instructions was authorized to open the office for plaintiff and thoroughly instruct him in all the details of the business. The only evidence as to these instructions is the testimony of plaintiff. The agent, Mr. Doud, was not called as a witness. Plaintiff says all the instructions he received were given him at an interview at a hotel of about 45 or 50 minutes, and consisted in the agent producing and opening a few samples, which he had, and reciting what the “booklet” said about them. He instructed him to insert “blind advertisements ” in three newspapers in Des Moines for canvassers ; to confine his bookkeeping to two small books, costing from 35 to 60 cents, and afterwards to use a complete set of books, which defendant would forward, and which never came. The next day Mr. Doud, in this city of from 60,000 to 70,000, rented an office for $8.33 a month, purchased second-hand furniture for the same, worth $17.25, and purchased stationery to the amount of $1.55, which constituted the equipment of the office.
Just before leaving he presented the following typewritten receipt for plaintiff to sign, which receipt was already prepared except the date:
“ Gentlemen: We have opened the office to-day — also stock which has arrived. The following expenses have been paid out by your representative:
Rent............................................„ §10 00
Furniture........................................ 17 25
Drayage .......................................... 1 00
Stationery ..........................1............. 1 55
§29 80
“Tour representative has fitted up my office in a satisfactory manner and instructed me thoroughly in the details of the business. You have fully complied with your contract to date, and I feel well qualified to go ahead. You can rest assured of receiving my hearty co-operation at all times.
“ Yery respectfully yours,
“ J. W. Ward.
“Room 526, Good Block.”
Plaintiff says that he had objected to the kind of furniture provided, and the stock had not yet arrived, of which he had notified defendant by letter the day previous. The agent stated he was required to have a receipt for money expended, and plaintiff signed the statement. He followed the instructions given him and wrote for further instructions, and received reply that there were no personal instructions. The goods had not been consigned to him, but to “R. H. Gaines,” a person unknown to him. He wrote several letters to defendant to trace the goods, and received the shipping bill to the above consignee, and found the goods on November 9, 1905. Plaintiff could get but few canvassers from the advertising recommended by the agent. He testifies that he became suspicious of the representations made to him by defendant that his concern was the largest of its kind from the unattractive appearance of the packages, and also as to the quality of the goods, and upon this consulted a chemist.
He wrote many letters to defendant reporting what he was doing as to canvassers and the business generally. On November 24, 1905, plaintiff sent defendant his
It will be proper first to refer briefly to the pleadings. There are three counts to plaintiff’s declaration to which defendant pleaded the general issue. It is urged by defendant that the first count is inconsistent with the second and third counts in that the first is founded upon a breach of contract, and the second and third upon fraud, and that the court erred in not requiring plaintiff to elect upon which theory he would proceed, and cites Haas v. Malto-Grapo Co., 148 Mich. 359 (111 N. W. 1059). We think that the cases are distinguishable, although the contracts involved are identical. In the case at bar the first count is founded upon a rescission of the contract, tender of the goods, and a demand for $1,000 paid by plaintiff, on account of the refusal of defendant, pursuant to the contract, to instruct the plaintiff sufficiently in the details of handling the business, thereby preventing the fulfillment by plaintiff.
In the case cited the suit was brought upon the contract for the breach thereof, thereby affirming the contract. The second and third counts were also founded upon a
The court was not in error in refusing to require plaintiff to elect upon which count he would ask for a recovery. Under the first count the court allowed the plaintiff to introduce evidence tending to prove one of the four grounds for rescission declared upon, namely, that defendant had not sufficiently instructed plaintiff as agreed in paragraph 2 of the contract, and refused to do so. The fraudulent representations relied upon, which plaintiff claimed were made orally and in writing, and upon which the court allowed him to go to the jury, were: That the defendant and his agents fraudulently represented to him that he intended to establish a permanent branch office and distributing depot at Des Moines, Iowa; that defendant fraudulently represented that he was the largest exclusive manufacturer of this line of goods in this country, and that he fraudulently represented the goods manufactured by him and shipped to plaintiff were equal in quality to the highest standard of such goods in this country or in Europe; and that experience on the part of plaintiff was unnecessary.
Evidence upon each of these propositions relied upon in his declaration was offered by him to establish his case, and was received by the court. Defendant argues at length that the declaration was not sufficiently broad to warrant the court in permitting much of this evidence to be received, and that error was committed in so doing. All of this evidence was material to the issue, and, in our opinion, the declaration was sufficiently broad to warrant its admission.
It is urged that the court allowed too great latitude in the examination of these witnesses, permitting them to give their understanding of the contract. It was necessary and proper to go into the entire history of each of these cases. The allowance of this evidence objected to, in view of the exact and explicit charge upon this line of proof, was not prejudicial to defendant. The fact that the other contracts were made, as stated by these witnesses, was not disputed, nor was it denied that the letters sent before and after the contracts were executed were sent by defendant.
“Q. As a matter of fact, in order to sell your goods, does a man have to have any experience in selling that line before ? ”
Plaintiff objected and called attention to the above ruling of the court upon the same ground in defendant’s favor. The court sustained the objection. This was not erroneous. Defendant was simply required by the court to be consistent. Any other course in the trial of a cause would lead to great confusion and would be disastrous.
In our opinion, when plaintiff closed his case, he had presented evidence sufficient to entitle him to have it considered by the jury, and it was not errox to deny defendant’s motion for an instructed verdict.
This charge of necessity was very long, and the court clearly and distinctly stated to the jury the questions which mjght be considered by it. As already stated, the matter of these representations was not submitted to the jury. The rulings of the court, during the whole of the trial, distinctly show that was the view he took of the question, except in one instance, where one question was
Errors are assigned to parts of the charge as given.
(1) Relative to the advertisement, the court said that if they could find—
“ That the defendant meant by the use of that language that no experience in the handling of these goods as a general sales agent was necessary, then I say to you that that language may be the subject of a fraudulent representation.”
Turning back to this advertisement, it will be seen that it contains the words “experience unnecessary.” This portion of the charge is claimed to be error because the court failed to define the word “necessary.” This was language adopted by defendant in what plaintiff claims was part of a fraudulent scheme to relieve applicants of $1,000. We have before us in this record the fully developed scheme, and this advertisement was in fact for general sales agents in this defendant’s line. It may now be read and considered in the light of the whole case made by plaintiff. There is no denial that this was the business, and these were the agents sought by defendant in his advertising invitation to applicants having “$1,000 and good references,” to undertake to manage a “branch office and distributing depot for large manufacturer.” The court properly instructed the jury upon this advertisement.
(2) Defendant claims that the court erred in charging that it was not necessary for plaintiff to prove all of these fraudulent representations in order to recover, but that, if they should find any one a fraudulent representation, plaintiff was entitled to recover, and it was prejudicial and misleading. It is not claimed that this does not state the
(3) The court charged the jury at great length upon that feature of the case which related to instructions given to plaintiff by defendant under the contract. In one clause of the contract defendant agreed to instruct plaintiff in the details of handling the business until he was sufficiently instructed, in the estimation of defendant. The court, among other things, said that defendant must deal fairly and justly with plaintiff; that the clause must be construed reasonably; that defendant was called upon under the contract to do what he in, good faith thought was reasonably necessary in instructing plaintiff in the duties of a general sales agent. After saying this, and much more of like effect, he finished by giving the paragraph excepted to:
“ If you shall find, then, from the evidence, that the defendant knew, at the time the plaintiff rescinded the contract, that the plaintiff was not sufficiently instructed in the details of handling the business, then defendant broke his contract,” and this breach was such as authorized the rescission, and, if they so found, plaintiff was entitled to recover.
The record contains much evidence upon this subject tending to show defendant did not sufficiently instruct plaintiff. It appears that plaintiff had no experience in this line of business; that all the instructions he received from defendant were meager; that he wrote defendant nearly every day, and in many of the letters he is asking for instructions and information. The answers were before the jury, as also one in which defendant practically states that plaintiff needs no personal instructions. The court was correct in saying that this pledge in the contract to instruct meant a reasonable and good faith instruction by defendant. The evidence made this a question of fact for the jury;
(1) Did plaintiff when he signed the contract rely on the statement made to him by defendant, Cook, that • defendant, Cook, intended to establish a permanent branch office and distributing depot at Des Moines, Iowa P The jury answered, “Yes.”
(3) Did defendant, Cook, on October 10,1905, intend to establish a permanent branch office and distributing depot at Des Moines, Iowa? The jury answered, “No.”
(3) Did defendant, Cook, instruct or' cause plaintiff, Ward, to be instructed in the details of handling the business, until plaintiff, Ward, was sufficiently instructed, in the estimation of defendant, Cook ? The jury answered, “No.”
Defendant argues that they are not questions which control the issue. We disagree with counsel for defendant, and refer to the questions as conclusive upon the proposition, and cite the authority upon which he relies. Cousins v. Railway Co., 96 Mich., at page 389 (56 N¿ W. 14), et seq. These questions do not ask for findings upon facts not vital to the case, but findings necessarily conclusive of plaintiff’s right to recover.
It follows as a necessary conclusion, from the view we take of this case, that the motion for a new trial by defendant was properly denied by the court. The case was submitted to the jury by the court in his charge by a clear and correct statement of the law, as applied to the facts of the case. The jury under this charge found a verdict in favor of plaintiff. This, in our estimation, was amply justified by the evidence.
The judgment is affirmed.