Cox v. Savage , 209 Mass. 501 ( 1911 )

Rugg, J.

This is an action of contract upon an account annexed. The defendant was in November, 1906, appointed division manager of a corporation (of which the plaintiff is assignee) for Vermont and New Hampshire. The business of the corporation was dealing in milking machines and dairy supplies. At this time the defendant had a talk with the president and directors of the corporation, in which, to quote the defendant’s testimony, “ They said they didn’t have money enough to run two stations of supplies, and if I had the supplies I would have to advance money toward the supplies.” The company’s depot of supplies was then in Holyoke. The defendant acted for the corporation from this time until July, 1908, at first leasing and afterwards selling machines, and he kept certain supplies at his place in Vermont for local needs. Both machines and supplies were shipped to the defendant on his order, and invoiced to him at a gross price less his commission. It is not contended that the machines were sold to him, but it is contended that the supplies were sold to him. The defendant made collections and remitted, but at no stated times. A change in management of the corporation occurred in March, 1908, and negotiations followed for the establishment of a new business arrangement between it and the defendant. These came to naught, and the relations ceased in July, 1908. At this time the defendant had in his possession certain supplies, which he claimed the right to return and receive credit for under the terms of his original contract with the corporation.

The case was tried upon oral evidence, and an “ Agreed Statement as to Facts.” A question arises as to its construction. Among its terms were these: that “the items and credits stated in the account annexed to the plaintiff’s declaration . . . are correct so far as they go,” with exceptions not here material. “ That during the period of his said agency relations with the New England Dairy Supply Company the defendant received certain milking machinery supplies from the said company, and was charged therefor by the company in his accounts with them; that some of the said supplies were in his possession at the time of the termination of his relations with the company. The defendant claims and the plaintiff denies that the defendant should be credited for such supplies as were in his possession at the time of the termination of such relations, the defendant contending and the plaintiff denying that the relations and agreements of the defendant with such company were such that said credit should be given,” and that “ the only question to be tried before the jury shall be whether or not the defendant shall have any credit for such goods as were in his possession at the termination of his relations with said company.”

This does not amount to an agreement to shift the burden oi proof from the plaintiff as to his general right to recover and tc impose it upon the defendant to establish as an independent defense his right to the return of the supplies on hand and be credited for them. The dispute concerns the precise terms of the arrangement between the parties, and is, whether the defendant was a purchaser of all supplies sent or whether he was a consignee ultimately liable only for such as he finally sold. The controversy does not relate to what in pleading is a confession and avoidance, but to the character of the original contract as to the dairy supplies. This is confirmed by the fact that the declaration is a count upon an account annexed, and the answer a general denial and payment. The burden of proof as to what the contract was rested upon the plaintiff throughout. Wylie v. Marinofsky, 201 Mass. 583. The agreed facts admitted the correctness of the items, but did not reach to any admission as to what the contract was.

The question at issue in one aspect was whether the defendant received the supplies as agent or as purchaser. The fact that they were charged to him on account is not decisive and was for the jury to pass upon. That might have been found to be a matter of bookkeeping for convenience in keeping track of them. There are several circumstances which appear to support the claim of the defendant that he was agent and not purchaser. The supplies were shipped and charged to him in the same way as were the machines, but both sides agree that the machines were sent to him as agent and not as purchaser. They were all invoiced to him at the gross price less “ his commission.” Commission is not used in a proper sense as to goods sold directly to a consignee. Discount is the natural word to use in such connection, while commission correctly decribes that which an agent receives on sales. It further appeared that in some instances customers in the defendant’s territory dealt directly with the corporation, and in these cases it paid to the defendant the same commission he would have received had he secured the customer himself. Letters from officers of the corporation speak of the defendant as its agent. The conversation between the defendant and the president and directors of the corporation at the time of his appointment as manager for Vermont and New Hampshire may have been found to amount only to an agreement on his part to make advances on account of supplies sent him so that the corporation would not be crippled by running two supply stations, which did not modify the general agency relation, and did not constitute an agreement to purchase.

In view of these considerations it could not have been ruled rightly as matter of law that there was no evidence to support the defendant’s contention as to what the contract was. The nature of the relation was a question of fact.

Exceptions sustained.