McCay Engineering Co. v. Crocker-Wheeler Electric Co.

Jones, J., delivered the opinion of the Court. The appellant here, the McCay Engineering Company ol Baltimore City, a corporation formed under the laws of this State, instituted in the Baltimore City Court an action of covenant against the Crocker-Wheeler Electric Company, a corporation formed under the laws of New Jersey, the appellee here, to recover damages for an alleged breach of contract under which the appellant had been employed as the agent of the appellee for purposes therein specified. This contract does not appear in full in the record; but the clauses and provisions upon which the appellant bases its action are therein set out as follows : “This agreement made this 15th day of April, 1898, be ⁵³² tween the Crocker-Wheeler Electric Company, a corporation of New Jersey, hereinafter called the Electric Company; and the McCay Engineering Company of the City of Baltimore, Maryland, hereinafter called the agent; Witnesseth: First. The said agent agrees to sell for the said Electric Company, the apparatus, manufactured by it and not to sell or otherwise dispose of any direct current apparatus of any other manufacturer.

The said agent shall have the privilege of disposing of any second-hand apparatus that it may have in its possession or that it may take in exchange. “All sales to be restricted to the territory comprising the State of Maryland. This territory may be enlarged or diminished at any time or times by the said Electric Company without in any other manner affecting the terms of this agreement. ‘ ‘Second. The said Electric Company further agrees to refer to the said agent, as far as practicable, all inquiries for apparatus manufactured by the said Electric Company, coming from the territory above specified, but said company reserves the right to sell direct when it shall consider such action necessary to consummate a sale, and will in such case credit the agent with such commission as the net proceeds of such sales shall warrant, upon collection thereof, which shall not exceed five (S) per cent of said net proceeds. * * * “Ninth. This agreement shall run for six (6) months from date and thereafter until terminated by either party on thirty (30) days’ notice.

If such notice be given by the said Electric Company, it shall be served personally on the said agent, or mailed to its address. If such notice be given by the said agent, it shall be served upon any officer of the said Electric Company, or mailed to its principal office.” The appellant’s narr. after alleging the terms and stipulations of the contract which are contained in the provisions thereof just recited alleged a breach of the same as follows: ‘ ‘the defendant in violation of its said covenant and agreement did not refer to the plaintiff as far as practicable all inquiries for apparatus manufactured by the defendant coming from the territory above specified, said territory never having been en ⁵³³ larged or diminished by the defendant, but on the contrary during the continuance in force of said agreement under the terms thereof and before any termination thereof by either party thereto on thirty days’ notice as aforesaid or otherwise the defendant did make sales of large amounts of apparatus of great value within the State of Maryland directly and without the agency of the plaintiff, and the plaintiff says that the defendant did not consider such action necessary to consummate such sales and that in fact the same was' not necessary for that purpose; and-the plaintiff says that although the defendant collected large net proceeds of such sales and although the said net proceeds on collection thereof warranted a large commission, yet the defendant did not credit or pay the plaintiff such commission as the net proceeds thereof warranted not exceeding five per cent thereof nor any commission whatsoever, but on the contrary, although often requested so to do, nevertheless wholly and wrongfully refused so to do and hath ever since continued and still continues to refuse so to do.” The- defendant, appellee here, pleaded nine pleas which, in substance, alleged breaches of the contract sued on on the part of the plaintiff, appellant here; and that the said agreement had been mutually abandoned by the parties thereto prior to the alleged breaches thereof complained of in appellant’s narr.\ and, in terms and specifically denied each of the several breaches so complained of. Replications and issues followed in due course. Upon the trial of the case the verdict and judgment were for the defendant and the plaintiff brought this appeal.

The questions for the consideration of this Court are presented in four exceptions taken by the appellant to rulings made by the trial Court. Three of these exceptions related to rulings made as to admissibility of evidence and one to an instruction granted at the close of the plaintiff’s testimony that there was no evidence in the case legally sufficient to entitle the plaintiff to recover and the verdict must be for the defendant. This last-mentioned exception will be first considered. The instruction which was the subject of this exception, refers ⁵³⁴ only to the evidence, and the question, therefore is, does this show a cause of action upon which the appellant (plaintiff below) can recover.

Balto. Bd. Asso. v. Grant, 41 Md. 560 -9; W. Va. Cent.

R. Co. v. Fuller, 96 Md. 652 -669; 2 Poe's Plead. & Prac., sec. 302. The appellant offered in evidence the contract upon which it declared in its narr. containing the provisions which have been herein set out. It then proved that the appellee had, without the agency of the appellant, made, in the State of Maryland, a number of sales of apparatus manufactured by the appellee to which the contract had reference; and the prices at which the sales had been made; that said sales had been made without the knowledge of appellant; that' the latter had demanded commissions, at the rate of five per cent on the amounts for which the proof showed the said sales had been made; that the appellee had refused to pay, on the sales as to which this proof had been offered, any commission whatever; that in two instances in which these demands had been made the appellee had stated specific grounds for its refusal; that one of these instances was the case of a sale of machines to the Western Union Telegraph Company in which the appellee had replied to the demands of the appellant that a clause, which it was usual for the appellee to insert in all of its contracts, reserving to itself the right to sell direct to telegraph and telephone companies, had been inadvertently omitted from the contract with the appellant, but had stated no other ground of refusal; that the other instance was that of a sale of a machine to the Gail & Ax Branch of the American Tobacco Company in which the appellee stated as the ground of its refusal of commissions that the appellant had “agreed to waive a commission” on a previous sale by the appellee to the same vendee “in consideration of being given a ■ contract for wiring their works” and had stated no other ground of its refusal though the said waiver had no relation to the sale upon which the demand for commissions in this instance had been made; that the appellant had always demanded, under the contract here in question, “a