Nixon v. Cutting Fruit Packing Co. , 17 Mont. 90 ( 1895 )

Pemberton, C. J.

— This case was commenced in a justice’s court, and the pleadings are therefore informal. The plaintiff merely filed his account in court, to which the defendant filed an answer, setting forth the terms of the plaintiff’s employment by defendant, substantially as shown in the statement. The plaintiff admits that the terms of his employment were as stated by defendant in its answer, but says defendant would have made money if it had complied with its contract.

The court gave the following instruction to the jury: “You are instructed that if you find from the evidence that the plaintiff in this action entered into the service of the defendant to sell goods on a commission of two and one-half per cent, on the dollar for all goods sold by plaintiff for defendant in the state of Montana, and that thereafter and in pursuance of said agreement plaintiff sold goods amounting to the sum of twelve thousand dollars, and that the commissions on said amount for the goods so sold amounted to the sum of two hundred and ninety-nine dollars, and that the defendant has not paid the same, or any part thereof, you should find a verdict for plaintiff for that sum. ’ ’

Defendant assigns the giving of this instruction as error. Defendant contends that neither the pleadings nor evidence justified the giving of this instruction, as there was no dispute that plaintiff sold the goods for defendant. But he was not to have any commission unless he made money for the defendant, as plaintiff himself admits. His right to commission was dependent upon the condition that he made money for defendant. He admits he made no money for defendant, but charges -the failure to defendant. This instruction ignored this condition entirely, and based plaintiff’s right to recover upon the simple question as to whether he actually sold the goods, which question was not in dispute. The instruction is not in conformity with the .theory upon which the case was tried. We think it was misleading, in conflict with other instructions, and therefore prejudicial to the defendant.

The court also gave the following instruction: “You are instructed that if you find from the evidence that the defendant in this action was on the 18th day of October, A. D. 1889, indebted to plaintiff in the sum of two hundred and ninety-nine dollars for services rendered to defendant, and that the defendant has retained and withheld the said sum of money by an unreasonable and vexatious delay, you should find a verdict for the plaintiff for the said sum of two hundred and ninety-nine dollars, with ten per centum interest added thereto from the 1st day of October, A. D. 1889.”

The defendant assigns the giving of this instruction as error. Defendant contends that there is no averment in the pleadings of unreasonable and vexatious delay, nor any evidence to justify the giving of this instruction. This contention, we think, is clearly supported by the record. The defendant was not guilty of, or properly charged with, unreasonable and vexatious delay by defending in good faith this suit. (11 Am. & Eng. Enc. Law, pp. 384, 385, and cases cited; Devine v. Edwards, 101 Ill. 138; Alcohol Works v. Sheer, 104 Ill. 586.)

We think the record in this case discloses the fact that the defendant believed it had a meritorious defense to the action. The evidence shows that the defendant was put to great expense and loss by having to store the goods the plaintiff sold, in sending a man from California to adjust disputes with parties to whom plaintiff had sold its goods, and by being compelled to sell such goods at reduced prices; all resulting from plaintiff’s selling one brand of goods to his customers and ordering another, in such disobedience of instructions of the defendant as manifested bad faith on the part of plaintiff towards his employer and customers. In this case the agency of plaintiff and the sale of the goods by him are not matters in dispute. That plaintiff was not to recover commissions unless he made money for the defendant, and that he did not make money for it, are conceded by plaintiff. The only issue left was whether his failure to make money for the defendant was chargeable to its own fault or failure to comply with its part of the contract between it and plaintiff. To show such failure devolved upon the plaintiff.

The defendant contends that the evidence does not support the verdict, in that it does not show that plaintiff’s failure to make money is in any way chargeable to defendant. While we do not feel called upon to determine this question, yet we feel authorized in saying that the record does not satisfy us that plaintiff has shown, as we think he was bound to do in order to authorize a recovery, that defendant’s failure to make money through his agency is attributable to its own default or failure to comply with its contract in any particular. On account of the errors of law above shown the judgment and order appealed from are reversed.

Beversed.

De Witt and Hunt, JJ., concur.