Jordan & Phillips v. Dixie Culvert & Metal Co. , 148 Ga. 23 ( 1918 )

Atkinson, J.

This was an action to recover alleged definite sums as commissions for sales of personalty, made on different dates. When the case was before the Supreme Court on general demurrer, it was held: “If a vendor sells personal property and in the contract of sale promises the vendee, in consideration of the order for the goods, to allow commissions to a selling agent who is a friend of the vendee, but who has not negotiated the sale, and if the vendor after the sale has been completed refuses to pay the commissions, the vendee suing for the use of the selling agent can maintain an action to recover the commissions.” Jordan & Phillips v. Dixie Culvert & Metal Co., 146 Ga. 284 (91 S. E. 68). On the subsequent trial the evidence tended to show that the “selling agent” represented the vendor in a certain locality, and the vendee was his regular customer; and that he was accustomed to receive commissions on sales which varied according to prices obtained. The sales upon which the commissions in question were'claimed were made, not by the “selling agent,” but by the vendor directly. The court excluded testimony tending to show an agreement between the vendor and vendee that the vendor would pay to the “selling agent” commissions on a sale the approximate price of which would be a stated amount, but not specifying an amount or percentage for arriving at the amount of commissions contemplated to be paid; also testimony to the effect that commissions on such sales would reasonably amount to those alleged in the petition. At the conclusion of the plaintiff’s evidence the judge granted a nonsuit. Error was assigned upon this judgment, as well as upon the rulings excluding evidence as just indicated. Held, that the evidence excluded, if admitted, would not have been sufficient, within itself or in connection with the other evidence in the case, to show a contract between the vendor and vendee to pay the “selling agent” a definite amount as commissions; and there was no error in rejecting the evidence and granting a nonsuit.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.