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(156 La.)

"The party of the first part" (meaning the No. 24150.

defendant here) “agrees to a low and will allow

unto party of the second part” (meaning the VAN NESS v. LOUISIANA FARM

plaintiff) “as commission and compensation for MACHINERY CO.

his services as herein set forth twenty (20) (Supreme Court of Louisiana. March 24, 1924. per centum of the retail sale price of such

tractors sold, as such retail price is fixed and Rehearing Denied by Division C

listed at the factory, each party agreeing to May 5, 1924.)

abide by and be bound as regards commission (Syllabus by Editorial Staff.)

by the retail list price as fixed at the factory,

which price is subject to change from time to 1. Principal and agent em4l-Mandate; allega- time, at the discretion of the manufacturers;

tions insufficient to warrant recovery of prof- the compensation or consideration of this conits for tractors not delivered.

tract on the part of the first party being taken Where agent ordered from his principal out of the balance of said sale price of tractors eight tractors which were not shipped, agent on terms and as per contract existing between did not state cause of action for loss of profits, said party and the manufacturers, and not in where he failed to allege that he could have any way dependent upon the 20 per cent. above sold at an advanced price, or that they would mentioned; and have been worth the price for his own use. “The party of the first part further requires

that all orders be sent to it by second party, 2. Principal and agent om 41-Mandate; peti. and that, with each and every order so sent in,

tion for commissions and recovery of advanc- a deposit of one hundred (100) douars accom, es on tractors not shipped held good.

pany same, the first party agreeing to forward In a subagent's action against his princi- | all such orders received to the manufacturers, pal for breach of contract whereby he was to to be filled and shipped out to destination desigsell tractors, petition for commissions and re- | nated in due course of business, shipments to be covery of advances on tractors not shipped held sent out with sight draft attached for the balto state cause of action,

ance of the purchase price, less the aforesaid

20 per cent. commission, it being understood Appeal from First Judicial District Court, that the prices fixed are f. o. b. factory, WaterParish of Caddo; John R. Land, Judge. loo, Iowa, and that the $100 advance deposit Action by M. B. Van Ness against the is not to be returned to second party.”

required shall apply on the purchase price and Louisiana Farm Machinery Company. Judg. ment for defendant, and plaintiff appeals. Plaintiff avers that the meaning of the Judgment annulled, and case remanded, paragraph last quoted was that the sending

Edward Barnett, of Shreveport, McCoy & in of an order, with the required deposit, Noss, of Lake Charles, and Barnette & Rob- made a binding contract at the price then erts, of Shreveport, for appellant.

fixed and listed at the factory, and that deCrain, Jackson & Johnston, of Shreveport, fendant was then responsible for the payment for appellee.

of the commission, at 20 per cent. on the

price so fixed and listed at the time of the By Division A, composed of O’NIELL, C. receipt of each order with the accompanyJ., and ROGERS and BRUNOT, JJ.

ing $100 deposit. Whether the sales were

to be made at the prices fixed and listed at O’NIELL, C. J. The plaintiff has appealed the time of the receipt of plaintiff's orders from a judgment dismissing his suit on an and accompanying deposits, or were to be exception of no cause of action.

made at such prices as might be fixed and The suit is founded mainly upon a con- listed at the time of the shipments, is the tract by which the defendant, as sales agent important question propounded by the exfor the Waterloo Boy tractors, appointed | ception of no cause of action. Plaintiff alplaintiff the exclusive subagent for a limited leges in his petition that, if the contract does territory. The term of the contract was not plainly express the meaning which he one year, commencing on the 10th of July, attributes to it, it is ambiguous in that re1917. It was afterwards extended to the spect, and that he will prove by verbal testi31st of July, 1919. The principal demands in mony that his interpretation of the instruthis suit are: (1) For a commission on the ment is correct. He avers that both parties price of eight tractors which plaintiff avers have so interpreted the contract, and that he ordered and which were not shipped, and the defendant is estopped to deny that such (2) for the return of $800 which plaintiff interpretation is in accord with the intenavers he deposited with the orders for the tion which the parties had when they signed tractors. The cause or right of action de- | it. And, in that connection, plaintiff annexes pends upon plaintiff's contention that, by the to his petition a letter written to him by determs of the contract, the price of the trac- fendant, dated the 20th of September, 1917, tors, on which his commission of 20 per cent. viz.: was based, was not subject to change after

"Dear Mr. Van Ness: We have advice from defendant's acceptance of an order, with the the factory that there will be an advance on the required deposit. The pertinent clauses of Waterloo Boy tractor, the present price of the contract are:

which is $855.00 f. o. b. cars at the factory, em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(100 So.) at Waterloo, Iowa, on Oct. 1st, of $100.00, graph of the petition, and are very vague. making the retail price $985.00 at the factory. It is alleged merely that the defendant is in"You have orders on hand at this time for debted to plaintiff for an item of $54.90 and two carloads. One of the cars has been shipped an item of $422.02, represented by two credit and should reach you within a day or so; the

memoranda, which defendant received from other car will move in the near future.

"We advise that you protect yourself as soon the Waterloo Gasoline Engine Company, of as possible with further orders against this Waterloo, Iowa, for claims really due to advance, as you well know the Waterloo is plaintiff by defendant. the standard tractor in your section, and the The allegations relating to this demand, only question on band will be delivery. for $478.92, based upon the alleged credit

"See your prospects as soon as possible, get memoranda, are not plain enough to state a them to protect themselves with the usual de cause of action. posit of $100.00, then they are protected.

[1] The allegations on which is founded "Very truly yours," etc.

the demand for $2,400, for the alleged loss Plaintiff avers that, in response to this of profit on eight tractors at $300 each, are letter, he remitted to defendant, on the 25th lacking in this, that it is not alleged that of September, 1917, $400, as a deposit, with plaintiff could have sold the tractors at the an order for four of the "Model R” tractors, advanced price, or that they would have been at $708 f. o. b. factory; that is, 80 per cent. worth the price for his own use. In fact, of $885. He avers that defendant cashed his we doubt that he would have bought the check and retained the proceeds.

tractors at the advanced price stated. The He avers that, on the 8th of April, 1918, supposition is, from the allegations of the he placed "another similar order” for four petition as a whole, that plaintiff had taken additional Waterloo Boy tractors, Model N, orders for the sale of the eight tractors at the "to be shipped later, at a time to be specified retail price listed when he sent in his orby petitioner"; and that the order was ac- ders with the required deposits. In that cepted by defendant, by letter dated the 10th case, his profit would have been limited to of April, 1918, saying:

the commission of 20 per cent. on the retail

price so listed. "We beg to acknowledge receipt of your faFor of the 8th, with check vor four wundred

[2] Our opinion is that the allegations redollars, as deposit on four Waterloo Boy trac- lating to the demand for the commission of tors, Model N, to be shipped later, at your 20 per cent., and for the return of the de pleasure."

posit of $800, do set forth a cause of action.

We refer to these demands together because Plaintiff avers that the check for $400, ac- both depend upon the meaning of the concompanying the order last mentioned, boretract, and because, if plaintiff was mistaken the notation, “Dep. on 4 Model N Waterloo in his understanding of the contract, and of Boys at 720 factory."

defendant's letter urging him to put up the He avers that defendant, afterwards, in deposit, and if, therefore, he is not entitled several letters, the dates of which are stated, to the commission, he may well be entitled repudiated the contract and refused to carry to a refund of the deposit. it out. He avers that, on the 6th of October,

The basis of the exception of no canse 1918, while his orders for the eight tractors of action, with regard to the commission, were "in good standing," he demanded in is the defendant's contention that plaintiff writing the shipment of four of the tractors, had no right to demand shipment of the tracbut that defendant failed and refused to comply with the contract. He avers that, tors at the price listed when he filed his

orders and deposits, but was only entitled to on the 13th of October, 1918, he again de have them shipped at the price prevailing at manded in writing the shipment of four of the time of shipment. The question is put the tractors that he had ordered, and that de- clearly and succinctly in the brief of the atfendant, without legal cause or excuse, ignored his demand,

torneys for defendant, viz.: He avers that, if the eight tractors had “The question for determination, therefore, been shipped in response to his demands, the is: Could the plaintiff legally demand shipment Tetail price would then have been $1,250 f. at the old price quoted by the factory at the

b. cars, Waterloo, Iowa; whereas, under time the deposit was made, if there had been bis contract

, he was entitled to them at $950 an advance in the price at the time shipment 1.0. b. cars, Waterloo, Iowa. Hence he claims

was demanded?" $2,400 as the profit which he avers he would have made-$300 on each tractor—if they The attorneys for defendant argue that

He claims also $1,520 as the language of the contract leaves no doubt the commission of 20 per cent. on the eight that the price at which the tractors were to tractors at $950 each; and claims the $800 be shipped was the price listed at the time deposited in part payment of the price of the of shipment-not the price listed at the time eight tractors.

of the receipt of an order and deposit. And, There is also a claim for $478.92, the al- for greater certainty, counsel cite the extenlegations regarding which are all in one para- sion agreement, and say:

100 SO.-4

had been shipped.

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of any one as to the meaning of the original con- to have been ordered on the 25th of Septract in this respect, that doubt was certainly tember, 1917, we understand the allegation set at rest by the language used in the renewal to be that the shipment was expected at once, executed fourteen days after the expiration of the original contract. In the renewal, it is or without unnecessary delay. That, howprovided that all prices soall prevail as quot- ever, is a matter of no importance in view of ed by the factory at the time orders and speci- the fact that, as to the four tractors ordered fications are received at the factory.'"

on the 8th of April, 1918, defendant accepted

the order "to be shipped later," at plaintiff's The expression quoted from the extension pleasure. If plaintiff had sought to take ad. agreement seems to be in accord with plain- vantage of defendant's liberality in that retiff's interpretation of the original contract. spect, the case would have been very differThe expression “at the time orders and spec-ent from the one we have. ifications are received at the factory” does For keeping the $800 deposit, defendant renot mean "at the time shipments are made.” lies upon the clause in the contract: It is said in defendant's brief that plaintiff

18 ter

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"The $100 advance deposit required shall apdoes not allege that he sent specifications, ply on the purchase price and is not to be reeither with his orders or afterwards. Plain- | turned, to second party." tiff does allege that he described the tractors by reference to the models which we assume It is argued in defendant's brief that plain. had reference to the manufacturer's cata- tiff has not lost his $800, because he may yet, logue. We have no reason to presume that at any time, have credit for the $800 on the such reference was not a sufficient specifica- purchase price of eight tractors—at the price tion, until the defendant has answered the fixed and listed when he sees fit to order allegation and denied that it was sufficient. them. That interpretation of the contract

Defendant's attorneys put great stress up is not in accord with defendant's letter dated on the statement in the contract, "which the 20th of September, 1917, persuading plainprice is subject to change from time to time.” | tiff to put up the deposit. The statement in That does not necessarily mean that the price the contract that the $100 deposit was “not was subject to change after the receipt and to be returned to the second party" did not acceptance of an order and the required de- add anything to the preceding statement; posit. A reasonable interpretation of the ex- that the $100 deposit should be applied to the pression is that the price was to be subject purchase price of a tractor. The meaning to change after the signing of the contract; intended to be stressed was that plaintiff in other words, that the commission to be should not get back the $100 if he should fail paid to plaintiff was not fixed upon the price or neglect to take the tractor. But, if it be prevailing at the time the contract was en-true, as plaintiff alleges, that defendant tered into. It would have been unsafe—if breached the contract, it may well be that the not impracticable--for the plaintiff to take $800 deposit should be returned. orders from his customers at prices listed in It is suggested finally, in defendant's brief, the manufacturer's catalogue, if the prices that defendant's only obligation under the were subject to change after acceptance of contract was to forward plaintiff's orders to the orders by the manufacturer.

the factory for shipment. The argument is Aside from the language of the original hardly consistent with the contention that contract and of the extension agreement, it plaintiff was not entitled to have the tractors is incumbent upon the defendant, by way of shipped at the prices listed when his orders answer to this suit, to explain the letter writ- were received. Be that as it may, the questen to plaintiff on the 20th of September, tion of defendant's responsibility for the al1917, advising him to protect himself against leged nonshipment, so far as the 20 per cent. an advance in price, by sending in orders as commission and the $800 deposit go, is a matsoon as possible, and urging him to see his ter of defense which would better be pleaded prospective customers as soon as possible and in answer to the suit. "get them to protect themselves with the Our opinion is that the petition makes a usual deposit”; and saying, “then they are sufficient showing to allow plaintiff a hearing protected."

on the merits of his case. We do not understand the plaintiff to claim When the defendant shall have answered that he had the right, after closing a bar- the suit, the district judge will have to degain by sending in an order with the re- termine whether the language of the instruquired deposit, to wait as long as he might ment sued on is yet ambiguous—whether see fit to wait for a shipment at the price verbal testimony should then be heard in prevailing when the order was given. His explanation of it. contention is that an advance in the price The judgment appealed from is annulled; after he had sent in his order with the re- the exception of no cause or right of action quired deposit did not justify a refusal to is overruled; and it is ordered that this ship at the price listed when the order was case be remanded to the district court for given, or justify a withholding of his com- further proceedings consistent with the foremission, or of his deposit.

going opinion. The defendant is to pay the

same

was

(100 So.) costs of this appeal; the liability for other upon an agreed commission of $5,000; that court costs is to depend upon the final judg- said firm on January 14, 1920, secured Dr. ment.

Isaac D. Benson as purchaser of said plan

tation at said price; and that the act of sale Rehearing refused by Division C, composed from defendant to Benson of this property, OF OVERTON, ST. PAUL, and THOMP- for a consideration of $135,000, was passed SON, JJ.

before a notary public January 17, 1920. Plaintiff company

avers that notwith.

standing the fact that its members procured (156 La.)

a purchaser for this property, after diligent No. 24407.

effort on their part and the expenditure of

both time and money, defendant has tendered GRACE REALTY CO. V. NOEL.

them only the sum of $2,500 as a commission, (Supreme Court of Louisiana. March 31, 1924. instead of the sum of $5,000 the commission Rehearing Denied by Division C

stipulated between the parties. May 5, 1924.)

Defendant admits in his answer that,

while on or about November 25, 1919, he en. (Syllabus by Editorial Staff.)

tered into a verbal agreement with Albert 1. Brokers Own 84(1)-Burden on principal to Grace, a member of plaintiff company, to sell establish termination of agency by limitation. this property for the price of $135,000, pay

Where principal admitted contract to pay able one-half cash and balance on time, upon broker named commission, burden was on prin

a commission basis of $5,000, yet defendant cipal to establish expiration of such agreement by limitation before consummation of sale alleges that this agreement was limited to a by himself.

period of 2 weeks, the defendant reserving

to himself the right to sell the property in 2. Brokers 57(2)-Brokers held entitled to

the meantime. Defendant avers that said full commissions on sale consummated by

agreement expired by limitation, without any principal.

sale having been effected by Grace, and that Where broker procured purchaser who bought property for agreed purchase price di- he then notified Grace that the property was rectly from principal, who, to consummate sale, no longer in his hands for sale, and that the reduced cash payment, held, that broker was

withdrawn. Defendant alleges entitled to agreed compensation.

that the payment of the cash portion of the

purchase price was a vital and important Appeal from Twenty-Seventh

factor in the proposition, and that he was

Judicial District Court, Parish of Ascension ; Philip unwilling to dispose of his property, unless

at least $60,000 cash was paid to him. H. Gilbert, Judge.

Defendant admits in his answer that some Action by the Grace Realty Company time later, on or about January 14, 1920, he against Robert E. Noel. From judgment for agreed that Grace might bring a prospective plaintiff for an insufficient amount, plaintifl purchaser to see the property; but alleges appeals. Reversed and rendered.

that at the time there was in existence beJohn Marks and Ansil N. Simmons, both tween defendant and Grace no agreement of

any kind relative to any commission. of Napoleonville, for appellant.

It is admitted by defendant in his answer Walter Lemann, of Donaldsonville, for ap- that the plantation was sold by him to Dr. pellee.

Benson, the prospective purchaser brought By Division B, composed of Justices DAW- to defendant, for the sum of $135,000; $10,000 KINS, LAND, and LECHE. LECHE, J., of being paid in cash, and the balance of the this division, being absent on account of ill- | purchase price being secured by mortgage ness, Justice ROGERS, of Division A, heard notes. Defendant avers, however, that bethe argument and took part in the decision in fore closing the deal with Dr. Benson he

called up Grace at Plaquemine over the long

distance telephone, and took up the matter LAND, J. Plaintiff company, a commer- of compensation with him, and that Grace cial and real estate partnership, composed of expressly agreed to take the sum of $2,500 as Charles E. Grace and Albert L. Grace, seeks, a commission for the sale. Defendant has to recover in this suit a commission of $5,000 tendered this sum in open court. from the defendant, Robert E. Noel, for the It appears, therefore, from the admissions sale of the McManor plantation, owned by of the defendant himself that there was a said defendant, and situated in the parish of verbal agreement between him and Grace to Ascension.

sell this plantation for the sum of $135,000, It is alleged that on or about November and that Grace produced the prospective 25, 1919, said plantation was placed by de- purchaser, Dr, Benson, who purchased the fendant in the hands of said partnership, the property for said price. members of which are real estate agents and

The only question, therefore, remaining brokers, for sale at a price of $135,000, and for us to decide, is whether the commission

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

this case.

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of $5,000, originally agreed upon, should be | ary 13, 1920, he received a telephone message paid to Grace, or the commission of $2,500, from Hawthorne at Baton Rouge, La., intendered to him by defendant, should be ac- quiring if the McManor plantation was still cepted by Grace as his compensation for on the market on the same terms and condibringing about the said sale.

tions that it had been offered to him, and We are not impressed by the statement that witness rang up defendant and asked made by defendant in his answer that the him if the property was still for sale upon payment of $60,000 cash was a vital and im- the same terms and conditions, stating that portant factor, and that he was unwilling to be had a buyer for the place, and that desell his place unless at least $60,000 cash was fendant replied that it was, and requested paid to him. As a matter of fact, defendant that the purchaser he brought down to the sold his property to Dr. Benson within 60 plantation. This was the day before the days after the agreement, of date November sale to Dr. Benson. Hawthorne testifies 25, 1919, for $40,000 cash. This is clear positively that Ed. Grace, who drove him proof that defendant had not been able to and Dr. Benson to the place in his automodispose of his place for one-half cash, and bile, introduced Dr. Benson to the defend. that the vitality of this factor in the trans- ant, stating to him: action had ebbed to the extent of $20,000

"I have some other business to attend to, and cash, when the act of sale was passed, Janu. I am going to leave Mr. Hawthorne here to go ary 17, 1920.

over the place with Dr. Benson, and it's up to Such a defense, therefore, necessarily you to make the bargain with him. I told him loses its force as a reason for tendering the what the bargain was." sum of $2,500, or one-half of the original

There was no offering or bargaining whatcommission agreed upon, or as a circum

ever on this occasion as to the price of the stance tending to corroborate the testimony place, $135,000. Defendant stated that he of defendant as to any new and independent would not take less than $50,000 cash, and agreement as to the commission to be paid by Dr. Benson rejoined that he would not pay him. If defendant had been really unwilling to said that he would reduce the cash payment

more than $10,000 cash. Defendant then sell at less than one-half cash, he would, un- to $45,000, and Dr. Benson replied: questionably, have refused to sign a deed for a less sum. Defendant admits that, when

"No, I don't want to look at the place, unAlbert Grace came to see him November 24, less you accept $40,000 cash, and five notes 1919, they entered into an agreement by payable annually and the privilege of on or be

fore." which the place was to be sold for $135,000, and $5,000 commission was to be paid.

Mr. Noel (defendant) ordered the horses, Although defendant testifies that this and Dr. Benson says its no use to go out agreement expired after two weeks, which is there until you are willing to accept those denied by Albert Grace, defendant admits terms, and he (defendant) said, "Get the that Albert Grace rang him up on January 14, horses." 1920, and asked him if it would be all right The testimony of Ed. Grace shows clearto bring down a buyer. To this defendant ly that he notified defendant of the terms assented.

offered by him to Dr. Benson. The defendDefendant testifies that nothing was said ant had closed the sale before he even rang at the time by either party as to terms, con- | up Albert Grace over the telephone. The ditions, or commissions.

terms that defendant insisted upon, $50,000 Ed. Grace, a member of plaintiff company, cash and the balance in five notes, were the accompanied Dr. Benson, and H. M. Haw- same terms at which the property had been thorne, who was co-operating on this par- originally listed with plaintiff company. ticular occasion with said company, called There was no new or independent contract on defendant at his home, introduced Dr. made. The defendant received $135,000 for Benson to the defendant as the prospective his place through the efforts of the plaintiffs, purchaser, and he agreed to pay $135,000 for and owes them a commission of $5,000, as the property. Defendant testifies that, while agreed upon. Dr. Benson with Hawthorne were in the After closing the deal, defendant arbi. field and looking at the property, he rang up trarily fixed the commission at $2,500, when Albert Grace and told him that the buyer he had obtained the full price for his propwas there, and that he could sell him, pro- erty. vided the cash payment was reduced, and, if [1] Although defendant consented to rethe price was reduced, he "could not pay duce the cash price 20 per cent., he has cut him more than $2.500.".

the commission of plaintiffs' 50 per cent., Defendant would have it appear also from without their consent. If Albert Grace conhis testimony in the case that there was of sented over the telephone to accept $2,500 as fering and bargaining about the purchase a commission, it is inexplicable that he deprice at the house before it was agreed upon, nies such acceptance, that he wrote a letter and before Dr. Benson inspected the prop- on January 16, 1920, before the deed from erty. Albert Grace testifies that on Janu- the defendant to Dr. Benson had been passed,

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