Jonas v. American Grinder Manufacturing Co.

STURTEVANT, J.

From a judgment in favor of the plaintiff for moneys due, the defendants have appealed and have brought up a typewritten record. The names of the defendants are but different names for one entity which will hereinafter be designated as the defendant.

Commencing in 1920, F. W. and C. N. Jonas, copartners, were the agents on this coast of the defendant. The latter is a corporation and was engaged in manufacturing at Milwaukee, Wisconsin. Acting on the request of the copartners,

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the defendant commenced the manufacture of wrenches. The copartners represented the defendant on this coast in the sale of wrenches and other products manufactured by the defendant. As early as 1920, for the purpose of protecting itself against damage suits in the manufacture of wrenches, the defendant caused certain covenants to be inserted in one of its contracts with the copartners. Toward the end of the year 1924 the relations between the parties were terminated by the defendant. Thereupon C. N. Jonas entered into a contract of employment with the defendant, but F. W. Jonas completely severed his relations with the defendant, dissolved the partnership and commenced to liquidate its affairs. Later he commenced this action.

The plaintiff claimed the amount due on a promissory note which was given for the principal sum of $12,000, and he claimed a balance due on an account for commissions earned. The defendant controverted those items and claimed there was owing to it $12,000, the purchase price of 120 shares of its corporate stock alleged to have been sold and delivered. It also claimed a sum slightly less than $12,000 alleged to be due under a covenant of the contract of agency.

One of the claims set forth by the defendant in this litigation was for costs and expenses of litigation. The plaintiff replies that the litigation in question was not for the infringement of a patent and therefore that it did not come within the purview of the plaintiff’s contract. He further contends that the original contract of 1920 was superseded by a contract entered into in 1924. In this connection the plaintiff sets forth a certain covenant on the part of the copartners to pay a part of the costs of the litigation, but that said payments were to be deducted from commissions earned by the copartners. Continuing, the plaintiff contends that the defendant waived its right to deduct the payment from the commissions which were earned during the life of the contract and furthermore that the defendant discharged the copartners as agents and rendered it impossible for the payments to be made out of commissions thereafter to be earned. The trial court made findings in favor of the copartners on these matters and there is evidence in the record supporting the findings. The very most that can be said is that there is a conflict in the evidence, but it was for the trial court to determine conflicts.