Jordan v. Combined Amusements Co.

KERRIGAN, J.

This is an appeal from a judgment in favor of the plaintiff in an action against the defendant corporation for commissions on sales of its capital stock.

We think the judgment must be reversed on the ground that the evidence does not sustain the findings made in plaintiff’s favor.

The facts of the case' as disclosed by the record may be stated briefly as follows: F. W. Swanton had entered into a written' contract with the defendant whereby he undertook

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the sale of a certain number of shares of its capital stock, for which he was to receive twenty-five per cent of the receipts from such sales as a commission. He in turn entered into a written agreement with W. G. Loomis, plaintiff’s assignor, wherein it was provided that Loomis would co-operate and assist Swanton in the sale of the stock, for which service Swanton would pay him one-half of his commissions. Under this last agreement sales of stock were made by Loomis, and Swanton had made one payment of commission to him, when they, being both officials of the company, Swanton being president and Loomis secretary, directed the bookkeeper of the defendant to keep the account of their sales and commissions in the books of the corporation. This was done, and, accordingly, when sales were made by either Swanton or Loomis they would each be credited with twelve and one-half per cent of the proceeds of the sales, and would be charged with the expenses incurred by them and with commissions paid by the corporation to subagents, and the balance due each when settled was paid by the defendant’s check.

It is not shown, so far as the evidence discloses, that it was the understanding of any of the parties to the transaction that the corporation was to assume the obligation of Swanton to pay Loomis the commission due him on sales of stock, or that its obligation to Swanton under the contract first mentioned was modified. The course it pursued in making payments to Loomis was apparently with the consent of Swanton, and a natural consequence of the assumption by the corporation of the task of entering upon its books the sales of stock made under its contract with Swanton so as to show the state of the account between Swanton and Loomis. The latter on the witness-stand admitted that the corporation undertook the matter of bookkeeping merely as a convenience to Swanton and himself. It is true that the directors of the corporation knew that the commission accounts of Loomis and Swanton were being kept in the corporation’s books, and it is true that Loomis testified that when he was pressing for payment of eleven thousand dollars due to him as commissions the directors promised payment as soon as the Panama-Pacific International Exposition opened, at which time the corporation, through the ownership of certain concessions in connection therewith, expected to be in daily receipt of sums