Stevens v. Van Wagoner-Linn Construction Co.

It is evident, from the course of business between the parties, and from their practical construction of the contract, that they contemplated that whenever the plaintiff obtained the consent of architects, engineers, or others having charge of the letting of work, to receive bids or proposals from the defendant, he should turn in a memorandum in writing, specifying the location of the work and the name of the owner, or contractor, or architect, or engineer, or other person who was to receive proposals, and the percentage to be paid to him, which the contract provided should “be determined” by him in such written notification. It is manifest, therefore, that while the defendant agreed that the plaintiff should have commissions on all work done for or through the parties named in Schedule S, it was contemplated that, by the presentation, acceptance, and signing of such slip notification in advance, the defendant would know that the plaintiff was to claim commissions, and could be guided thereby in making its bid or proposal ; and if that was not done the defendant was to be at liberty to present bids or proposals even to undisclosed principals of those named in Schedule S- free from any claim by the plaintiff under his contract with it. The contract further provided with respect to commissions to the plaintiff as follows:

“He shall also be entitled to commission in eases where he obtains permission to bid or estimate from parties not mentioned in schedule, and a report of obtaining permission followed by a request to estimate make him so entitled. provided slip is signed for each job by the company. After such report, all further communications from such parties shall be turned over to him for attention, and the names of such parties shall be placed on Schedule S with like effect as if they had been there before. As heretofore, the written acceptance of the company of reports made by said Stevens shall be final that he is entitled to commission in that case.”

It was further expressly provided in the contract that “upon demand the company will account to said Stevens for all business transacted and referred to in this agreement.” And it was also provided that the commissions should be payable, one-third upon the making of each contract, one-third upon the receipt of the first payment, and one-third upon final payment, and that the first two payments" should be based on the estimate and price, and that if such estimate should be less the actual amount received, including extra work, the percentage on the excess should be paid with the final payment. With respect to the period the contract was to run, it was provided that it should continue in force until after written notice by either party to the other.

[2] The plaintiff alleges that he solicited and procured business for the defendant pursuant to the contract from the 17th day of July, 1907,

There was no appearance by the defendant in the action until after the entry of the interlocutory judgment, when it appeared by counsel on the accounting before the referee. On the motion for the confirmation of the report of the referee, counsel for defendant moved to vacate the interlocutory judgment and all proceedings taken thereunder, on the ground that the complaint fails to show facts entitling the plaintiff to an accounting, or sufficient to constitute a cause of action, and upon the further ground that the interlocutory judgment is irregular and of no legal effect, in that it grants plaintiff relief not demanded in the complaint. The motion was denied, and the making of the motion is recited in the final judgment. The defendant regarded the final judgment as overruling its motion" to vacate the interlocutory judgment, and states in its notice of appeal that it appeals therefrom.

It is arg-ued on the appeal in behalf of the defendant that the interlocutory and final judgments are void, for the reason that the plaintiff failed to show a cause of action for an accounting, or any cause of action, and on the ground that the interlocutory judgment, which was entered by default, contravenes the provisions of section 1207 of the Code of Civil Procedure, in that it is more favorable than was prayed for in the complaint. The last contention is made on the assumption that the interlocutory judgment does not limit the accounting to the demand in the complaint or confine it to the contract. It requires an accounting for all moneys received by the defendant on business transacted by it “and referred to in the agreement of July 17, 1907,” between that date and November 17, 1911, “with persons whose business was solicited” by the plaintiff, or was transacted with any of the parties named in Schedule S, or their principals, or with parties not named in Schedule S “in cases where plaintiff obtained permission to bid or estimate upon work, which estimate was made,” without limiting the accounting by the provisions of the contract with respect to .the written reports or slips, and the acceptance thereof, or limiting it to the business procured by the plaintiff. I am of opinion, however, that the interlocutory judgment is to be construed in connection with the complaint and contract, and that, as so construed, it required an accounting pursuant to the provisions of the contract, and therefore does not entitle the plaintiff to recover in disregard of any express provisions of the contract.

[3] Under the complaint, however, the plaintiff is limited to a recovery on the basis of performance of and compliance with all the provisions and conditions of the contract for he alleges performance.

[4-6] It is also quite clear that the complaint states a cause of action. It shows that some commissions have been earned by the plaintiff, and that the defendant has failed to account. The defendant is therefore guilty of a breach of the contract, which entitles the plaintiff in any event to nominal damages. Moreover, if it be regarded as an action at law, a recovery of the commissions to which the plaintiff is entitled will not contravene the provisions of said section 1207 of the Code of Civil Procedure, for the judgment demanded is for the amount due the plaintiff, to be ascertained in accordance with* the provisions of said contract. It is also quite clear that the defendant, having seen fit to allow judgment to go by default, cannot be heard to claim-that the plaintiff is not entitled to an accounting, which it by the contract expressly stipulated to give him. The court has merely decreed what the defendant contracted to give. It is a peculiar contract. The plaintiff is not suing for commissions in the ordinary sense. With the exception of the provision with respect to part payment, he is entitled to recover only after the defendant has been paid under each contract upon which he is entitled to commissions; and the contract is capable of the construction that the plaintiff was to have part of the money received by the defendant, and not an amount equal thereto. That would explain the provision by which defendant agreed to account to the plaintiff. There is no merit, therefore, in any of these preliminary contentions made by the appellant.

The real question presented by the appeal is whether the recovery was warranted by the evidence. We have not been materially aided by the briefs in deciding the questions already discussed, and with respect to the facts the briefs fail to point out by folio references, as required, the evidence in support of the respective contentions. The referee found that the plaintiff was entitled to commissions, aggregating $1,864.35, on the amounts received by the defendant under 31 contracts. It may well be that, by the omission to incorporate in the interlocutory judgment, the provisions of the contract with respect to the reports in writing or slips and acceptances, the referee was misled, for it appears that in some instances he has allowed commissions in disregard of those provisions of the contract.

The defendant filed an account with the referee, to which the plaintiff interposed objections. The account filed showed that the plaintiff was entitled to commissions on 10 items, but that he had been paid in full therefor, with the exception of $1.92, being a balance of commissions due on one of them. The referee sustained the account as to commissions with respect to the items specified therein, with the exception that, in addition to the conceded balance of $1.92, he found

On the contract designated No. 79, the referee allowed commissions which aggregate $72.42. That was for work on the Comedy Theater. Neither the name of the architect, nor of the contractor, appeared in Schedule S; nor were the conditions shown to exist which would entitle their names to be deemed added thereto' under the contract; and the plaintiff did not procure or solicit the work, or make a report in writing, or hand in a slip, or procure the acceptance of a slip, with respect thereto.

[7-9] The plaintiff was also allowed commissions on contracts Nos. 58, 70, 71, 72, 83, 89, 92, 96, 97, 100, 101, 102, 106, 110, 112, 116, 120, 125, 126, 127, 128, 129, and 131, aggregating, as I figure it, $791.-30. He failed to show that he procured these contracts; and with respect to mos°t of them the evidence affirmatively shows that he failed to procure a slip to be signed by the defendant, and with respect to the others he failed to show by satisfactory evidence that he procured a slip to be signed. If the work was let by any of the parties named in Schedule S, or by their principals, or by any of the parties whose names the plaintiff would be entitled, under the provisions of the contract, to have added to Schedule S, it was necessary for the plaintiff to show that he made a report, stating the commissions claimed, and procured the acceptance thereof by the defendant, which, in effect, is what was intended by the slip mentioned in the contract; but in such instances it was not incumbent upon him to show that he negotiated the contracts. He was, however, entitled to commissions, without procuring the signing of a slip, upon moneys received pursuant to contracts negotiated by him, at the rates specified in the report made by him on procuring them.

He was also allowed commissions aggregating $258.92 on contract No. 114. With respect to that contract he showed that he procured two slips to be signed by defendant on the 31st of October 1907, to the same effect, excepting that they bore different dates; but they specified only the name of the owner for whom the work was to be done. He procured two other slips to be signed for this work, under date of “April,” 1909. One of these was signed by the defendant, “Accepted, for owner only;” but the evidence does not clearly show which was signed last, and, if the one without limitation was signed last, the plaintiff’s testimony shows that he failed to disclose to the defendant his purpose in procuring it to be signed, which was to remove the limitation, “Accepted, for owner only,” and therefore it cannot be said that the defendant intended to sign the slips without limitation. Moreover, the plaintiff’s claim for commissions on this work is based upon the fact that the name of the architect was on Schedule S. The theory on which the defendant accepted the slip for owner only was that it expected that the work would be let by a firm of contractors with whom it had relations, and from whom it could obtain an invitation to submit a proposal, and it only intended to obligate itself

The evidence satisfactorily shows that the plaintiff was entitled to the other commissions recovered, either on the ground that the work was done through one of the parties named on Schedule S, or whose name the plaintiff was entitled to have deemed added thereto, or his principal, and that he procured slips to be accepted by the defendant therefor, or on the ground that he was instrumental in procuring the particular contract.

[10] If there shall be a new trial, a question may arise, as it did arise before the referee, with respect to whether the plaintiff is entitled to have the name of an architect or contractor, through whom he had procured business for the defendant, or permission to estimate for the defendant, prior to the execution of the contract in suit, but whose name is not on Schedule S, deemed added thereto. Manifestly there is no merit in that contention, for when the contract was made the parties, by Schedule S, named and defined those who were to be regarded as plaintiff’s customers, and he is limited and confined by that schedule with respect to then existing or past customers.

If, therefore, the plaintiff sees fit to stipulate to reduce his recovery by the items we found he has not shown a right to recover, and interest thereon, the judgment will be modified accordingly, and affirmed, without costs; but otherwise it should be reversed, and a new trial granted before another referee, to be named in the order, with costs to the appellant to abide the event. All concur.