Shook v. Marion Manufacturing Co. ( 1904 )

Carpenter, J.

By direction of the trial court, plaintiff recovered a verdict for commissions claimed to have been earned by her in July, 1901, by making a sale of a threshing machine for defendant. This threshing machine was a secondhand one. It had once before, namely, in 1899, been sold by plaintiff, as defendant’s agent, to one Daniel Dean. Dean did not fully pay for it, and defendant reacquired title by the foreclosure of a purchase-money chattel mortgage. For said sale to Dean, plaintiff did not receive, and does not claim, any commission.

Plaintiff effected the second sale of this machine—the sale for which she claims commission in this suit—under a verbal agreement with defendant’s general agent that she should receive her regular commission; that is, the commission provided in a written contract between the parties. Upon the assumption that this verbal agreement was of binding force, the trial court directed a verdict in plaintiff’s favor.

The principal ground upon which defendant asks us to reverse the judgment is that, by a written contract between the parties, plaintiff was not entitled to compensation for making a sale of secondhand machines once sold by her, except under conditions which did not exist in this case. The only written contract set forth in the record bears date December 5, 1900, and was for the season ending September 30, 1901. If this contract should be construed as claimed by defendant—and this is by no means certain—it has no application to the sale in question. That contract has no reference to plaintiff’s commissions for the second sale of machines which had once been sold by plaintiff before the date of this contract.

Neither can we say from the record that the contract with defendant under which plaintiff acted when she first sold the machine in question, namely, when she sold it to Daniel Dean, deprived her of commissions in the event of its being returned and resold.

Defendant contends that a provision in the written contract between the parties forbidding its change, unless such change was approved in writing by defendant, applied to and prohibited the verbal agreement between its agent and plaintiff respecting the commissions in suit. Our conclusion, already stated, that this written contract had no reference to the sale in question, sufficiently shows that, in our judgment, the verbal agreement under consideration was not a change of said written contract. Nor does it appear to be a change of any other written contract.

Complaint is made of rulings admitting testimony. We do not consider these complaints, because, in any view that may be taken of the case, it was the duty of the trial court to direct a verdict for plaintiff.

Judgment is affirmed, with costs.

The other Justices concurred.