Newel v. Port Huron Engine & Thresher Co.

57 So. 68, 2 Ala. App. 423, 1911 Ala. App. LEXIS 90

Opinion

WALKER, P. J.

According to the averments of pleas 5, 6, 7, and 8. the claim of the plaintiffs arose out of an agency contract between them and the defendant, under which the plaintiffs, as agents, took orders for certain machinery from divers persons, which machinery was delivered by the defendant to the several purchasers, who gave their notes for all or the larger part of the purchase price, the defendant retaining title to the machinery until fully paid for; and “commission certificates” on account of such sales were issued by the defendant to the plaintiffs, each of which certificates recited that there would be due to the plaintiffs a named sum “upon return of this certificate, indorsed by him, at any time after payment in .full is received by” the defendant “at its office in Port Huron, Michigan,” of a described note given by the purchaser of the machinery, “subject to the terms of the agency contract under which sale was made,” and contained also the following provision : “And it is understood and agreed that this obligation is to become null and void; and this certificate surrendered, in case of failure of said Port Huron Engine & Thresher Company to collect said note, or if said note is collected by an attorney, or by suit.” The agency contract, under which these “commission certificates” were issued, contained the following provisions: “Commission certificates shall be issued by the Co. to the agent, showing the amount due the agent as notes are paid in cash. The commission on each sale made for all cash on delivery may be retained from the proceeds of such sale; but in each sale made on time, or part cash and part time, the commission is included in, and is payable pro rata, as the notes are paid. After the note is paid in full and the proceeds thereof received by the Co. in cash, at its office in Port Huron, Michigan, the Co. is to account to the agent for that portion of the commission included in said note, less- the proportion of discount and expenses allowed or incurred on said note. No commission is to he paid or allowed on any order not filled, nor any machine returned or taken back for any cause whatever. No commission is to be allowed upon the proceeds of foreclosure sales; on allowances in compromises; changing the time of payment ; changing the evidence of indebtedness, obtaining judgment, nor the sale of property, shall none of them be considered as collections.” Each of the pleas alleged that the defendant had paid to the plaintiffs their pro rata commissions on all cash collections made on sales negotiated by them. In reference to the “commission certificates” held by the plaintiffs, upon which it is averred their claim in this suit is based, the fifth plea alleges that no other payment has been made to the defendant on account of any of the transactions in which such certificates were issued except the taking back by the defendant of its machinery after there had been default in payment of one or more of the notes given therefor. The sixth plea alleged that the only collection made on any of the notes corresponding with the “commission certificates” held by the plaintiffs Avas by an attorney taking back the machinery after default had been made in the payment of one or more of such notes, and payment of the same had been refused by the makers, severally, at maturity. The seventh plea alleged that no payment has been made to the defendant in cash on either of the notes referred to in either of the commission certificates held by the plaintiffs. And the eighth plea alleged that no payment in cash has been-made to the defendant on either of such notes, that in each case the machinery, was taken back after failure of the maker of the notes to pay one or more of them after maturity, and that the only collection made on such notes was by an attorney taking the machinery hack after default had been made in the payment of one or more of such notes, and they had been placed in the hands of. such attorney for collection.

It is urged in argument by the counsel for the appellants that the demurrers to the above-mentioned pleas should have been sustained on the authority of the ruling in the case of Taylor Manufacturing Co. v. Key, 86 Ala. 212, 5 South. 303. It is insisted that that case is “on all fours in every respect with this case,” and is “an exact counterpart of it,” and that that ruling establishes the proposition that in such a case as the one at bar the agent could not be made to lose his right to any part of his commission as the result of the principal, without the agent’s consent, taking back from the purchaser the machinery sold unless there was a necessity for his so doing; and it is insisted that each of the above-mentioned pleas failed to set up a valid defense in that it did not show a necessity for the principal to take back the machinery in consequence of an inability to enforce the collection of the notes given for it. We cannot assent to this claim. In1 the case cited, where, as to one of the sales of machinery on which the plaintiff claimed a commission, it appeared that the principal, without the consent of the agent, made a settlement with the purchaser by taking back the machinery and accepting a conveyance of part of the land which had been mortgaged to secure the purchase price, though the purchaser was solvent and the mortgaged property was of sufficient value to pay the indebtedness and no necessity Avas shown for the seller taking back the machinery, it was held that the agent did not lose his right to the commission by the provision of the agency contract that “no commission shall be allowed or paid on any article taken back, or on any order taken and not filled, on machinery not settled for, or on any sale to irresponsible persons.” It seems plain enough that there was nothing in the terms of that contract to indicate that the agent consented to forego any part of his commission where, the debt for the property sold was collectible in any way, and that the provision that “no commission shall be allowed or paid on any article taken back” could not have been intended by the parties to apply to the case of the principal voluntarily accepting from a solvent purchaser in full settlement of his claim, a return of the machinery sold together with a conveyance of part of the land mortgaged as security for the purchase, price, the whole of which could have been collected in cash if the seller had chosen to enforce his claim. No such contract or state of facts is presented in the case at bar. By the express terms of the agency contract under which the plaintiffs negotiated sales of machinery they were to receive from the defendant commission certificates “showing the amount due the agent as notes are paid in cash”; and “no commission is to be paid or allowed on any order not filled, nor any machine returned or taken back for any cause whatever”; and the commission certificates issued to the plaintiffs, constituting the evidence of any right they acquired to commissions not already paid, provide that the sums named therein as commissions are to be due “after payment in full is received by” the defendant of the purchaser’s uote described in such certificate, and, further, that the obligation thereby evidenced is to become null and void “in case of failure of” defendant “to collect said note, or if said note is collected by attorney, or by suit.” So it appears by the terms of the contract between the parties that the part of the commissions evidenced by commission certificates was payable only in the event of the actual payment, by the purchasers, of the corresponding notes, and that in several contingencies provided for it was not payable at all, though the seller might be able to enforce collection of the corresponding notes after default in the payment thereof at maturity. As to one of the sales on which a commission Avas claimed by the plaintiff in the case of Taylor Manufacturing Co. v. Key, supra, it appeared from the evidence that only part of the purchase price had been collected. The contract between the parties provided for the payment of the commissions to the agent on each sale proportionately out of the cash and the proceeds of notes when collected. The court seems to have had no difficulty in reaching the conclusion that, under that provision of the contract, the plaintiff Avas not entitled to recover commissions on the uncollected portion of the purchase price. This branch of that case bears more resemblance to the case now before the court than the feature of the decision on Avhich the counsel for the appellants place their reliance. Whatever right the plaintiffs had to commissions on sales is evidenced by the agency contract and the commission certificates issued in pursuance of that contract. Each of the pleas above mentioned alleged the existence of a state of facts under Avhich, by the terms of the contract betAveen the parties, the plaintiffs Avere not entitled to the part of the commissions evidenced by the commission certificates noAv held by them. It was not necessary for the pleas to go further and show that the defendant Avas under a necessity of taking back the machinery sold in consequence of an inability to enforce collection of the purchase-money notes, as there was nothing in the contract between the parties preserving to the agent the right to the part of the commissions evidenced by the commission certificates unless such necessity existed for the seller to take back the machinery sold. The court was not in error in overruling the demurrers to the above-mentioned pleas.

Affirmed.