Flattery v. James Cunningham, Son & Co. ( 1900 )

Moore, J.

The defendant is a corporation selling coaches and funeral cars. It had in its employ a travel-* ing agent named Closs. Plaintiff claims the defendant authorized Closs to pay him commissions, where he could assist him in making sales, and that he did assist .in making sales, which entitled him to commissions amounting to $325.75. The jury rendered a verdict for $240.75.

Two questions are discussed by counsel for defendant. The first one is that the court should have charged the jury that, under the testimony of Mr. Closs, there is no authority shown to pay a commission on sales. Mr. Closs testified that the 'company authorized him, whenever a person could assist him in making a sale, to make the matter right with him, and pay him a commission for doing so. He "also testified that, as to some of the sales plaintiff assisted in bringing about, the company was informed of the amount of commission which was to be paid to the plaintiff before the sale was completed, and agreed to pay it. The manager of the defendant denied this testimony. This raised a question of fact, which we think was properly submitted to the jury.

The second point is that the plaintiff could not act for both buyer and seller in making a sale, and could not recover any commission on sales made to Mr. Straight; citing Tewksbury v. Spruance, 75 Ill. 187; Scribner v. Collar, 40 Mich. 375 (29 Am. Rep. 541); McDonald v. Maltz, 94 Mich. 172 (53 N. W. 1058, 34 Am. St. Rep. 331). There can be no doubt of the rule, but it is claimed on the part of the plaintiff that it does not apply to this case. The plaintiff was an undertaker. Straight was a liveryman, whose carriages, hearses, and teams were used at funerals conducted by the plaintiff. He insisted that, if Straight was to have his business, he must get two additional hearses. Straight decided to buy them. The agent of defendant and Mr. Straight were brought together through the plaintiff. ' The latter had nothing to do with fixing the price, nor did Straight pay the plaintiff a commission. We do not think the cases cited by counsel should bar the plaintiff from a recovery, if Mr. Closs was authorized to make the arrangement which it is claimed he did make.

Judgment is affirmed.

The other Justices concurred.