Caro v. Mattei

THE COURT.

This is an appeal by defendant from a judgment and from an order denying his motion for a new trial in an action for commissions upon sales of wine and brandy, of which the defendant was a manufacturer. By a contract dated January 2, 1912, he employed the plaintiff “as his sole representative for the sale of wines and brandies in the United States except the State of California, for the term of two years,” subject to the terms and conditions contained in said contract. Defendant agreed to pay plaintiff “as compensation for his services ... a commission on all sales of the first party’s wines and brandies made in the representative’s territory of seven and one-half per cent on the minimum price per gallon f. o. b. wineries and distilleries” of defendant, “and a commission of twelve and one-half per cent on all wines and brandies sold at eight cents or mo're above the minimum price.” The contract further provided that the defendant should have the right to fix all prices.

The court, we think, correctly included in its judgment commission claimed on a number of sales for delivery outside the limits of California in cases where the purchasers were customers of the plaintiff conducting their business in plaintiff’s territory, although such customers made these particular purchases at the winery of the defendant within this state. The defendant himself had so construed the contract. In at least one case, that of a sale and delivery of goods made in plaintiff’s territory, in which the negotiations were not conducted personally, either through the plaintiff or defendant, the latter, recognizing that the purchaser was a customer of the plaintiff, credited him with commission upon the sale. Evidence was also admitted, and properly, we think, tending to show that there was in California a well-established trade usage, according to which an agent is allowed commission on sales made in the agent’s territory. Technically, it might be said that since the defendant reserved the right to reject any order taken by plaintiff, no sale was in fact made until ap

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proved by defendant, so that no sale could be made outside the limits of California. But if such a construction were adopted it would leave the plaintiff entitled to no commission upon any sales. We think that under a fair construction of the contract, and according to the interpretation placed upon its terms by the defendant himself, the plaintiff was entitled to commission on such sales made for delivery in his territory. This case differs from