Wandell Chocolate Co. v. Goldsmith

Adkins, J., delivered the opinion of the Court. This suit grows out of a contract under which the appellee was employed by appellant to represent it in Washington in the sale of its chocolate products. The contract is in the form of a letter as follows: “Baltimore, Maryland, March 24th, 1920. “Mr. M. L. Goldsmith, “2706 27th St., H. W., “Washington, D. C. “Dear Sir: “This letter will operate as a contract between tbis concern and yourself. Erom tbis date until the end of the year 1920, we will pay you a weekly salary of $35 per week. “In excess of this, we will pay you a commission of t>°/0 on all. business done in the City of Washington, whether sold directly by you or not, amounting to more than $25,000. “We sincerely hope that this contract will operate profitably for both parties concerned, and that we ¹⁵² will have the pleasure at its termination of renewing • it for a longer period. “With very best wishes, I am, “Tours very truly, (Signed) Lewis S. Wandell, President “Wandell Chocolate Company. “Accepted: M. Goldsmith (Signed).” At the time of entering into this contract -appellee was a salesman in Washington, handling four or five various- lines for the drug, trade “and had a, certain following in these lines; that is candy line, stationery and sundries and one or two other lines.” H'e had previously represented Mr. Guth, of the Chocolate Products Company, in the chocolate line.

Mr. Wandell had also been connected with that company and it was there that appellee became acquainted with him.. Wandell left Guth and started the new company which was in competition with Guth in the same character of business. It seems appellee was unable to make terms with the Wholesale Drug' Exchange of Washington to- distribute appellant’s goods on such terms as appellant was walling to accept, the exchange offering to distribute the goods on a ten per cent, margin and appellant being willing to allowr only five per cent., and appellant decided that it would not be profitable for it to employ appellee- to make sales- independent' of the exchang’d, so at the end of two weeks- appellee was paid for that time and discharged by the following letter: “April 3rd, 1920. “Mr. M. L. Goldsmith, “2706 27th St., H. W., “Washington, D. C. “Dear Mr. Goldsmith: “We sent you check for $70 yesterday, covering the past two weeks. “When you and I discussed your coming with us, I took it for granted we could sell the Washington Wholesale Drug Exchange, and that you could make ¹⁵³ yourself valuable in picking up small orders from its members and turning it over to the exchange. K¥e can’t give 10 % off our prices.

That’s impossible. Our margin is too small, and therefore, we apparently can’t sell them goods. This cut any chance of doing enough business in Washington to warrant our having regular salesman there, and we will cover that city'with the house salesman, who covers Baltimore and District. “I am very sorry that this condition has come about, as we like you very much, and would like to have had you identified with us. I know that you will appreciate the necessity of my writing you to this effect. “Hope everything is going fine with you and will continue to, and with all good wishes, I am, “Yours very sincerely.” Thus it appears that there was noi dispute about the contract and. none1 about its 'breach by appellant, the only question being as to> whether it was acquiesced in by appellee.

As to' this the testimony is conflicting. There are two- bills of exception in the record, one to the admission of certain letters from appellee to appellant, seven in number, and the other to the ruling of the trial court on the prayers. We find no error in the admission of the letters. They all were in the nature of reports or inquiries, and tended to show that appellee was performing his duties under the contract.

Issue wras joined in this case on the general issue plea and it was a part of plaintiff’s! case to show that he had performed his obligations under the contract. The letters were relevant and therefore proper evidence. At that stage of the proceedings plaintiff could not know what the defense would be. The second exception is to the granting of plaintiff’s first and third prayers, and to the refusal of the defendant’s second, third, fourth, sixth and seventh prayers, and to the modification of defendant’s fifth prayer.

The Reporter is requested to set out these prayers in the report of the case. ¹⁵⁴ Plaintiffs first prayer is defective in form in that it does not require the jury to find a breach, by defendant. But as there is no conflict of testimony as to the breach, it being practically admitted, there was- no prejudicial error in granting this prayer. See McGrath v. Marchant, 117 Md. 480 . Plaintiff’s third prayer properly instructed the jury that the burden was upon the defendant to prove that plaintiff agreed to cancel the contract.

Defendant’s second and third