Beck v. West & Co. , 87 Ala. 213 ( 1888 )

STONE, C. J.

This action was brought by Beck against West & Co., and claims damages, first, for unpaid commissions on sales made by Beck; and, second, for failing to supply him with expense money agreed to be supplied, and thereby preventing his performance of the contract, and throwing him out of employment. Other grievances are complained of, but we will show further on that they furnished no ground of recovery.

It is said in the bill of exceptions that there was a demurrer, and a ruling on it; but, inasmuch as this appears only in the bill of exceptions, we can not consider it. — 3 Brick. Dig. 78, § 7; Ib. 705, § 82.

The contract, for an alleged breach of which this action was brought, appears to have been made entirely by correspondence. There is no testimony tending to show that the contracting parties ever had a personal interview. Terms were offered by West & Co., which were accepted without modification by Beck. It was the duty of the court to interpret those writings, and hence it became its duty, and not that of the jury, to determine what obligations the writings imposed on each of the contracting parties. We concur with the trial court, in holding that no contract was made which bound either party to its observance for a longer term than January 1, 1888. We hold further, that, up to that time, there was a binding contract, requiring West & Co. to give employment to Beck as their travelling salesman, and, in consideration thereof, binding Beck to serve them as a travelling salesman for the same term. Beck’s compensation was to be half the profits made on sales effected through his agency; but he was to pay his own expenses, and, with the exception of samples, he was to provide his own outfit. West & Co. were to furnish samples; and, to enable Beck to meet expenses until profits should be realized, they bound themselves to honor and cash his orders to be drawn on them, for fifty dollars for every two weeks he. should have continuously worked for them in said biisiness. These were not payments to Beck, but loans or advances to be made to him, to be repaid out of his share of the profits on the sales of merchandise he was expected to make. It is manifest that both parties contracted in the honest belief and expectation that Beck’s share of the profits on the sales he would make, would at least equal fifty dollars for every two weeks; and they made no provision for the contingency that they might not reach that sum. Yet, West & Co. gave no guaranty as to the amount of the profits Beck should realize. This was left dependent on his success as a salesman. We hold that West &' Co. bound themselves to give Beck employment as a travelling salesman until January 1, 1888, to furnish him samples, and to lend to, or advance for him fifty dollars for every two weeks he was actually engaged in such service. The contract confers no discretion in the performance of these stipulations. And the contract equally bound Beck to serve them as travelling salesman with energy and fidelity, to allow them to retain of his share of the profits until they reimbursed themselves for the loans or advances made to him; and if such share of the profits fell short of' reimbursing them, then Beck would owe them the balance.

The interpretation we have given the contract places the parties in an embarrassing predicament, but it is chargeable, perhaps, to a want of foresight in framing it. It is not in our power to modify the terms they agreed on.

On the testimony found in this record, we are not able to affirm that plaintiff violated any term of his contract, while the testimony, if believed, shows that West & Co. broke their contract, by refusing to honor and pay Beck’s drafts] What, then, are proper elements of damages, entitling him to a recovery?

He was clearly entitled to recover his share of the profits on sales made by him. Bo, if he had agreements for later sales, which he could have perfected during his term, he is equally entitled to his share of the profits. But, to fall •within this class, the negotiations must have proceeded so far, as that it can be ascertained with certainty that the sale would be made, and the extent of it. Mere expectations, doubtful offers, or other vague or indefinite assurances of intention to purchase, without expression of quantity or value, must be classed as speculative, and hence not recoverable. Being thrown out of employment was also an element of damages, if it were not that no standard can be fixed for ascertaining its extent. Opinion as to what sales he could, or probably would have made, all fall within the category of the speculative, are contingent, and do not tend to show a right of recovery. — Pollock v. Gantt, 69 Ala. 373; Brigham v. Carlisle, 78 Ala. 243; Higgins v. Mansfield, 62 Ala. 267; Culver v. Hill, 68 Ala. 66; Union Refining Co. v. Barton, 77 Ala. 148; Bell v. Reynolds, 78 Ala. 511.

The cost of plaintiff’s horse and buggy, the value of his services per month, and damage to his credit, were each and all irrelevant testimony, and properly ruled out.

Plaintiff, as a witness for himself, offered to testify, that “he had made arrangements with certain merchants to place their orders for tobacco, cigars and snuff, through plaintiff, on defendants’ house, on his second round in November and December, and offered to prove the names of such merchants, with the amount of goods each one proposed to take, and what plaintiff’s commission on such proposed sales would have been.” This testimony he was not allowed to give. This was error. To constitute this a right of recovery, however, his proof must come up to the rule as to certainty, which we have declared above.

The charge, “that in no event can the plaintiff recover more than the amount of his commissions” on sales actually made and completed, was probably correct on the testimony that was before the jury. No data had been placed before them, on which they could have rendered a verdict for greater damages. If the testimony, which we have decided the court should have received, had been put in, and had shown a case for recovery under.the rules we have declared, then the charge would have been erroneous.

Beversed and remanded.