Gregory v. Cohen & Sons , 50 S.C. 502 ( 1897 )

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

1 For a full understanding of this case, it will be necessary for the reporter to set out in his report of the case, a copy of the referee’s report, to whom it was referred by consent of the parties, to hear and determine all the issues in the case, together with the decree of the Circuit Judge and the exceptions thereto. From these papers it will be seen that this was an action at law, pure and simple, brought by the plaintiff to recover from defendants the amount of a balance alleged to be due him for commissions on sales and orders taken by him for goods, as a salesman or drummer, and also to recover damages for breach of the contract by defendants under which he was employed. It is well settled that, while the findings of fact, as well as of law, by a referee, in a case of this kind, may be affirmed, modified or reversed by the Circuit Judge upon exceptions to the referee’s report, this Court has no power to review the conclusions of fact by the Circuit Judge in a law case, for the obvious reason that the jurisdiction of the Supreme Court is limited by the Constitution to the correction of errors of law, and can only review findings of fact in chancery cases. Meetze v. R. R. Company, 23 S. C., 1, and Griffith v. R. R. Co., 23 S. C., 25. This being so, many, if not all, of the questions presented by this appeal are beyond our jurisdiction, and we are compelled to adopt the findings of fact by the Circuit Judge. Indeed, even if we had the power to do so, inasmuch as the testimony is not set out in the “Case,” we would be unable to determine whether the referee or the Circuit Judge was right in the views which they respectively took of the testimony.

2 The contract upon which plaintiff relies not being in writing, its terms must be determined by the testimony in the case; and the Circuit Judge having found that the contract was not for a year, but was for no specified time, and could be terminated at the will of either party, there was, therefore, no breach of the contract on the part of defendants in terminating it in October, 1895, and hence no ground for plaintiff’s second cause of action. Indeed, we do not understand that plaintiff questions this by any of his exceptions, as he manifestly could not do, under the finding of fact by the Circuit Judge.

3 The next inquiry is, upon what orders was the plaintiff entitled to commissions under the terms of the contract? The plaintiff claimed, and the referee so found, that he was entitled to commissions on all orders taken from solvent parties; whereas the Circuit Judge found that the terms of the contract were that plaintiff should be entitled to commissions “on all orders taken by plaintiff which were approved and accepted by the defendants.” This also presents a question of fact, and we are bound to accept the conclusion adopted by the Circuit Judge. If so, then clearly the defendants were not liable to pay commissions on any order which was not accepted or approved by them; and the further fact found by the Circuit Judge, that “plaintiff’s commissions on all goods sold and shipped under his orders have been paid,” shows that plaintiff has no cause of action for any other commissions. The fact that some of the orders sent in by plaintiff were only partially filled, cannot help the plaintiff; for, besides what is said by the Circuit Judge upon this point, showing that by the testimony this was done by the implied assent of the plaintiff, if the contract was, as found by the Circuit Judge, that commissions were to be paid only on such orders as were approved and accepted; of course, the defendants might approve a part and reject another part of such orders, especially where it appears from the testimony, as stated by the Circuit Judge, that plaintiff was continually receiving letters from defendants instructing him as to the prices at which he was to sell, which prices were varying constantly according to the market, and also to withdraw certain goods from sale, as the “same were not in stock,” together with other instructions as to prepayment of freight, discounts to be allowed for cash, &c.

4 The only remaining inquiry is, as to whether there was error in allowing the defendants judgment for their counterclaim against the plaintiff. It will be observed from the answer that this counter-claim was not for the recovery of the possession of the trunk and the lot of samples, but for the recovery of damages to the amount of $30, for refusing to deliver defendants’ property upon demánd, therefor. This counter-claim not having been replied to by plaintiff, the defendants were entitled to judgment thereon, as by default — sec. 175 of the Code. But as the claim was for unliquidated damages, ordinarily the damages would have to be ascertained by the verdict of a jury — sec. 267 of Code — this not being a case in chancery. But the parties having waived the right to a trial by jury by consenting to have all the issues tried by a referee, such consent involves a consent to all the necessary incidents to such a trial, one of which is, that the report of the referee can be excepted to and reviewed by the Circuit Court, and upon such review that the findings of the referee, both of law and fact, may be reversed, affirmed or modified. Meetze v. Railroad Company, 23 S. C., at page 25. And inasmuch as the Circuit Judge stated in his decree that “the evidence shows that said trunk and samples were not, upon demand, returned by plaintiff to defendants, and that the same were worth $30,” we see no error in rendering judgment against plaintiff for that amount.

5 The plaintiff’s 8th and 9th exceptions cannot be sustained; for, in the first place, the demand was not for the recovery of the possession of the property attached, but for damages for refusing to return defendant’s property upon demand. This demand was made before this action was commenced, and, of course, before the attachment was issued; and the defendant’s cause of action asserted by the counter-claim arose before the action was commenced and before the said property was seized under the attachment. It is a mistake to suppose, as asserted in the 9th exception, that the Circuit Judge held “that property in the hands of the Court could be sued for and recovered in this case,” for there is no such holding in the decree of the Circuit Judge; on the contrary, the Circuit Judge, after rendering judgment that the complaint be dismissed and the attachment vacated, then proceeds to render judgment — not for the recovery of any specific property, but simply for damages under a cause of action arising before this action was commenced and before any attachment was, or could have been, issued.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.