169 Iowa 401 | Iowa | 1915
The action was brought at law to recover a money judgment. The petition is not set forth in the abstract, but we infer from matters stated or assumed by the parties in the record presented that the claim sued upon was in substance that defendant had served as plaintiff’s agent in the sale of certain automobiles and had failed to account for and pay over to his principals certain moneys coming into his hands on their account. To this petition, defendant filed an answer alleging full performance by him of his written contract with the plaintiffs and further set up a counterclaim to the effect that plaintiffs were indebted to him for commissions earned in the sale of certain automobiles and for other commissions on sales negotiated by him for the completion of which plaintiffs neglected or failed to furnish or deliver the necessary cars and also for the one-half of the necessary expenses of the agency, making an aggregate sum of $400 for which he demands recovery.
When the case came on for trial, the plaintiff Youtsey was ill and unable to be present and the petition was voluntarily dismissed without prejudice. Defendant refused to dismiss his counterclaim and plaintiff pleaded thereto and trial was had to the court on the issues so joined. It must be said that the issues are not clearly stated in the abstract and seem to involve controversies which, on plaintiff’s theory
FINDINGS AND CONCLUSIONS.
In the above cause it is found :—
1. From March 1st to December 12th; 1912, Frank Youtsey and Bert Yaughn were co-partners under the name of the Blue Grass Auto Company, engaged in the selling, as agent, of automobiles at Chariton, Iowa, and that T. F. Lemley was a sub-agent of the co-partnership selling automobiles at Russell, Iowa, on a share of fifty per cent of the commissions earned from the sales made by him of automobiles.
2. Under an arrangement between .Frank Youtsey and T. F. Lemley, Youtsey was to have all of the commissions earned on the sale of the first five cars sold by Lemley, and neither Bert Yaughn nor the Blue Grass Auto Company at any time had any interest in said commissions.
In the remainder of commissions derived from the sale of other cars by Lemley the Blue Grass Auto Company was to receive one-half of the commissions and’ is liable for one-half of the expense of making the sales by Lemley at Russell.
3. There is no evidence before the court showing that Frank Youtsey ever authorized Bert Yaughn to enter into the agreement with Lemley which written agreement is in evidence as exhibit one, or that he ever knew it was entered into or was conversant with the contents thereof, and there is no evidence that he ever authorized the Blue Grass Auto Company to collect the commissions on the first five cars sold by Lemley or to, in any manner, be interested in said commissions.
The claims in the pleadings and on the trial of the ease, made by Lemley are as follows:
(B) Claim for $75.00 of the commission of sale of the Overland car to Charles Allen, is established in that amount.
(C) Claim for one-half of the commissions amounting to $150.00 on three cars which Lemley claims to have sold and which cars were not furnished by the Blue Grass Auto Station, is not established.
(D) Claim for $45.00 due on expense account. The evidence shows as an expense, covered by the arrangement between the parties, rent to the amount of $16.00, one-half of which, $8.00, is established, the remainder of this item is not.
On the claim made by Frank Youtsey for commissions on the sale of the first five ears it is found that he received and accepted as commission on one of the cars a secondhand car that was received as a part of the sale price of one of the five cars. The commissions on the remainder of the five cars amount to $432.00. It has not been established that the check exhibit 3 in evidence, executed by T. F. Lemley and in favor of Bert Yaughn for $342.40, was a payment on the commissions due Frank Youtsey on the first five cars sold by him, and if it was so intended by Lemley then it is not established that Yaughn had any right or authority to receive the check, or that he ever delivered the money or any part of it to Frank Youtsey, and therefore cannot be allowed as a credit on this claim made by Youtsey.
RECAPITULATION.
Amount found due T. F. Lemley from Blue Grass Auto Co........................$ 83.00
Amount found due Frank Youtsey from T. F. Lemley .......................... 432.00
Balance in favor of Frank Youtsey and against Lemley...................... 349.00
The plaintiff shall pay one-third of the costs, and the de
From this judgment defendant has appealed.
I. The first exception argued is that the findings of the trial court are not supported by the evidence.
Of the defendant’s claim for one-half the commission on
The only other item of counterclaim is for agency expenses which under the contract were to be shared equally. The amount is alleged to be $45. As a witness, defendant testified, “There was a balance due me at the commencement of this action for expenses as sub-agent of about $45.” On further examination, he was unable to state any item of this expense except a matter of two months' rent at $8 per month. On this showing the court allowed him for one-half the rent, $8.00, and for no more. The correctness of this finding is not open to question, As an agent claiming reimbursement for expenses, it was incumbent upon him to make a showing of the facts from which the nature, amount and propriety of the expenditures may be ascertained. A general sweeping swear to the conclusion that “there is a balance due me for expenses of about $45” proves nothing.
The only finding of fact to which an exception can be sustained is that in computing the amount of the commission or profit on the five ears for which defendant should be held to account, there appears to have been a mistake of thirty dollars. It is shown without dispute that the commission bn one of these cars was received by Youtsey in the form of an old car taken in exchange, and defendant is therefore charge
The wife of Youtsey, testifying in his behalf, was permitted to say that under the terms of the purchase of the Ford agency, it was agreed that the commissions on the five ears which the defendant undertook to sell should be paid to her husband, and this is said by appellant to have been
For the reasons stated, the judgment of the district court will be modified by deducting thirty dollars from the amount of plaintiff’s recovery as of the date thereof and as thus modified it will be affirmed. The costs of this court will be taxed three-fourths against the defendant and one-fourth against the plaintiff. — Modified and Affirmed.