Garfield v. Peerless Motor Car Co. , 189 Mass. 395 ( 1905 )

Loring, J.

[After the foregoing statement of the case.] 1. The defendant’s first contention is that the sale to Orndorff was outside the plaintiff’s territory because the contract of sale was made in Boston and the car sold was delivered in Gloucester. His position is that the place where the sale is made, not the residence of the purchaser, is the test. But we do not think that it is so. It is manifest that the contract contemplates that persons buying cars or supplies shall buy them in the territory in which they belong. It is expressly provided that if the agent receives inquiries from territory other than his own, he shall refer them promptly to the defendant. This, coupled with his appointment as exclusive agent for Worcester and vicinity, implies that all inquiries from Worcester and vicinity should be referred to him.

At the time of the sale of the car here in question to Orndorff, Orndorff was a resident of Worcester, spending the summer at Gloucester, and continued to reside at Worcester for a year and a half more at least, and apparently still continues to have his legal domicil there. The defendant’s agent testified at the trial in March, 1905, that “ since January of this year [he] has been in California where he expects to remain for a year.” We are therefore of opinion that the sixth request could have been refused rightly. But the presiding judge gave it with the modification that so far as this case goes it was not applicable because Orndorff resided in Worcester. We interpret this to mean that the presiding judge thought that he could not say that there might not be cases in which sales could be made out of the territory to residents within it without violating the contract; but that the Orndorff case was not such a case.

The only case cited by the defendant is a case where an exclusive agent for the sale of typewriters in the State of Michigan was held not entitled to a commission on a sale made to a corporation having a dock freight and ticket office in Chicago and another office in Benton Harbor, where the sale was made in Chicago and the machine was sent by it to its office in Benton Harbor. Wyckoff v. Bishop, 115 Mich. 414. That does not help the defendant here.

2. The defendant’s next contentions are (1). (as stated in the eighth and ninth rulings requested) that the only commission to which the plaintiff is entitled under the contract is by way of a discount on the price paid by the plaintiff to the defendant on a sale made to him of a car which he re-sells to a customer; and (2) that the trade usage was erroneously admitted in evidence because it contradicted the contract. The only objection made is that evidence of usage on the point is not admissible. No objection was made to the evidence of usage introduced if evidence on the point is admissible. The defendant relies on the recent decision in Boruszweski v. Middlesex Assur. Co. 186 Mass. 589.

Had the contract been what the defendant contends for, it well may be thought that the trade usage would not have been competent. But that is not the contract. The contract was that the plaintiff was to be the exclusive agent of the defendant for Worcester and vicinity. The sale in question was a violation of that contract. We do not agree with the defendant in' its argument that the sale to Orndorff, being by the defendant itself and not by an agent, was not in derogation of the plaintiff’s rights as an exclusive agent for the territory in question. In our opinion, a case where one is made an exclusive agent for the sale of his principal’s goods in a specified territory (unless there is something to control the phrase) is the same as the case where an agent is given the sole and exclusive sale of the goods of the principal, as was the agreement in Wiggin v. Consolidated Adjustable Shoe Co. 161 Mass. 597. The right given here is exclusive of the principal as well as of other agents. When it is said that the right is exclusive of the principal it is not meant that the principal cannot sell. Of course he can sell, but if he does he violates the rights of his agent under the contract. The defendant cites to the contrary Golden Gate Packing Co. v. Farmers' Union, 55 Cal. 606. But after a full and careful consideration of that decision we are of opinion that so far as it rests on this ground it should not be followed.

In the case a.t bar the contracts contemplated that every sale to a Worcester man should be made by the plaintiff and should take the form of a sale to the plaintiff. In providing for a commission by way of deduction in the price paid by the agent, the contingency which has arisen in the case at bar was not a case which in the contemplation of the contracting parties would arise, and no provision is made for it. To provide by usage for that contingency is not to contradict what is provided for by the contract, but to cover a point left uncovered by it. We are of opinion that the usage was competent, and that the modification given by the presiding judge to the eighth and ninth rulings requested by the defendant was correct.

3. The defendant’s next complaint is to the instructions given in substitution for the ruling specified in its twenty-sixth request.

The twenty-sixth ruling requested is plainly wrong. Under our construction of the contract an inquiry by Hitchcock, if one had been made, ought to have been referred by the plaintiff to the defendant. The efforts of the plaintiff to sell a car to Hitchcock, a resident of Marlborough, were made in violation of the contract and not under and in pursuance of it, as stated in this ruling.

4. The twenty-seventh ruling requested was refused rightly. The plaintiff testified that his first talk with Morrison, the defendant’s New England agent, was in the last of March or the first of April. His story is that he then said that he already had written to Hitchcock and had sent one Henry to see him. He also testified that his second conversation with Morrison was after Hitchcock received his car the last of May or the first of June. But Henry testified that he saw Hitchcock at the plaintiff’s request, and that this was in June. It was open to the jury to find that Henry was sent by the plaintiff after the defendant’s New England agent said that “any man that left his card or admitted they had any conversation with me in regard to the car was my customer and I should get the commission.” For this reason the twenty-seventh ruling requested was refused rightly.

5. The objection of a variance between the third count and the evidence was not specifically raised at the trial. A general request for a ruling that the plaintiff cannot recover does not sufficiently call the attention of the presiding judge to the fact that a variance between the pleadings and the evidence is relied on. We do not mean to express an opinion on the question whether there was or was not a variance between the third count and the evidence.

6. The defendant’s next contention is that the New England agent’s statement that “ any man that left his card or admitted they had any conversation with me in regard to the car was my customer and I should get the 'Commission,” does not disclose any promise or agreement, but is a bare statement defining who are customers. But we are of opinion that this statement can be construed to have been intended for, and to have been, a promise that if the plaintiff would introduce the Peerless car to a man who afterwards bought one at the branch office and the customer admitted that the plaintiff had introduced the ear to his attention, the plaintiff should have a commission.

7. The letter admitted seems to be immaterial. If it was material it was competent on proof that it was signed in the defendant’s name by the sales manager.

8. The fact that Kirkpatrick was held out by the defendant to be its sales manager was sufficient to make his admission as to the defendant’s liability to pay a commission evidence against the defendant without further evidence as to his duties as sales manager.

Exceptions overruled.