Home/Court of Appeals of Texas/American Brake Shoe Co. v. Coombs

American Brake Shoe Co. v. Coombs

418 S.W.2d 841, 1967 Tex. App. LEXIS 2118
CourtCourt of Appeals of Texas
DecidedAugust 31, 1967
DocketNo. 293
StatusPublished
Cited by4 cases

This text of 418 S.W.2d 841 (American Brake Shoe Co. v. Coombs) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Brake Shoe Co. v. Coombs, 418 S.W.2d 841, 1967 Tex. App. LEXIS 2118 (Tex. Ct. App. 1967).

Opinion

OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial in favor of B. F. Coombs, d/b/a B. F. Coombs Company, appellee here and plaintiff below, against American Brake Shoe Company, a corporation, appellant here and defendant below, in the amount of $12,134.29.

Appellee sued appellant for commissions allegedly owing under a written agreement effective June 1, 1960, under which appellee was appointed a commission agent for the sale of alloy casting products within Texas and Louisiana to be manufactured by the Electro-Alloys Division of appellant. Ap-pellee’s recovery was based upon (1) the amount of $6,958.94 representing 10% commission on sales of merchandise made by him prior to December 31, 1964, not actually shipped until after that date but prior to February 8, 1965, and (2) the amount of $5,175.35 representing 3% commission on two sales made to Union Carbide Corporation, one in 1960 and the other in 1964, on orders originating outside of appellee’s territory, but which he claimed were placed pursuant to his promotional activities entitling him to such commission under certain provisions of the contract.

Appellant asserts thirteen points of error. Appellant’s first seven points and appellee’s first three counterpoints relate to appellee’s recovery of $6,958.94. Appellant’s points eight through thirteen and appellee’s counterpoints four and five relate to appellee’s recovery of $5,175.35.

Under appellant’s first seven points the contentions are made that appellee was not entitled to judgment on merchandise ordered in 1964 and shipped in early 1965 because (1) the contract was terminated at the end of 1964 by oral notice given by appellant timely reiterated in writing and received by appellee who acted on it without protest, even though such notice was not given in writing by registered mail sixty days prior to termination as provided by the contract; (2) appellee was estopped to complain of want of formality of the notice, (3) appellee agreed to appellant’s proposal to terminate [843]*843the contract by his words and conduct, (4) the doctrine of election, as submitted by special issues 3 and 4, has no application, (5) the evidence is legally insufficient to support the jury answers to special issues 3 and 4, (6) (7) the evidence is factually insufficient to support the jury answers to special issues 3 and 4.

We will first consider appellant’s points one and three.

Paragraph 12 of the contract, omitting subdivision (c) thereof which is not material here, reads as follows:

“12. Duration and Termination. This agreement shall continue in effect from the effective date hereof until terminated only as follows:
(a) By mutual agreement in writing; or
(b) After a period of one year by either party at will, with or without cause, upon sixty (60) days’ notice in writing given by registered mail; * * * ”

Appellant’s basic contention is that there was an oral modification by the parties of the prior written agreement; that the oral notice of termination given by appellant, timely reiterated twice in writing, was sufficient even though not given by registered mail, because appellee received the same and acted on it without protest. Appellant says there was a termination of the contract as a matter of law at the end of 1964, and there were no jury issues.

Appellant relies on the following testimony and evidence. In September 1963 Mr. Roy Cannon, sales manager of appellant met with appellee in Port Arthur, Texas, and discussed the contract and termination thereof. Appellant says that the conversation there established an oral modification of the contract so that it would terminate at the end of 1964; that pursuant thereto, appellant sent Mr. Bob Goddard to Texas in January 1964 as appellee’s replacement to begin taking over appellee’s territory; that thereafter in 1964 appellee wrote a letter in July 1964 replied to by Cannon for appellant by letter dated July 14, 1964 which letters confirmed the termination date of Dec. 31, 1964; that on October 29, 1964 Cannon wrote a letter to appellee confirming the oral agreement of September 1963 with the request that appellee sign the same and return a copy to Cannon, which appellee did not do; that, finally, on December 8, 1964, Cannon wrote appellee a letter sent by registered mail in which he terminated the contract in accordance with paragraph 12 thereof, but stated the termination date to be at the close of business December 31, 1964.

Appellee contends that appellant did not conclusively establish an oral modification of the contract so that it would terminate on December 31, 1964; that appellant did not conclusively establish that appellee accepted appellant’s alleged oral modification of the written contract which would have changed the provision for termination by sixty days written notice sent by registered mail; and that appellant did not request or obtain jury findings in such respects. We agree with appellee’s said contentions.

The conversation between Mr. Cannon in September 1963 was at best equivocal as to the method of terminating the contract. Cannon orally expressed the intention to terminate appellee’s agency at the end of 1964 but there was no discussion concerning the termination provisions of the written agreement. In particular, nothing was said with regard to the requirement that written notice be given by registered mail for 60 days prior to the actual termination date. Appellee testified that he never agreed that such notice of termination need not be given in the manner provided by the contract. The letters written by Mr. Cannon to appellee during 1964 and appellee’s letter to Cannon in July 1964, do not conclusively [844]*844establish a modification of the termination provisions of the written agreement. Mr. Cannon’s letters of October 29, 1964 read as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
418 S.W.2d 841, 1967 Tex. App. LEXIS 2118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-brake-shoe-co-v-coombs-texapp-1967.