Larrabee v. Republic Bond & Mortgage Co.

[448]

KNIGHT, J.

he respondent Weldon C. Larrabee brought this action against the Republic Bond & Mortgage Company, a corporation', and D. Binkhorst, its president, to collect $2,000 claimed to be due as commissions for the sale of the corporation’s capital stock. The trial court granted a nonsuit in favor of Binkhorst upon the ground that respondent’s contract of employment was with the corporation alone,' and at the conclusion of the trial entered judgment against the corporation for the amount of said commissions less the sum of $450 theretofore advanced to respondent under the terms of his contract, from which judgment the corporation appeals.

The corporation now contends that respondent’s contract of employment was with Binkhorst, and that consequently the corporation was not liable for the payment of said commissions. There is no merit whatever in the contention. The evidence shows that said corporation was about to enter upon a stock-selling campaign and in furtherance thereof had obtained from the corporation commissioner a permit to sell a certain number of shares of its capital stock and to pay a selling commission of not exceeding twenty per cent of the par value of the stock sold. Thereupon the directors of said corporation, by resolution, directed its vice-president and secretary to enter into a written contract with Binkhorst to “supervise the sale” of said stock for a commission “of 20% of the selling price thereof as authorized by said permit” and granting him power “to appoint and employ

for said corporation and in its name

competent salesmen. . . . ” (Italics ours.) On January 24, 1924, a contract to that effect was executed whereby Binkhorst was employed as “fiscal agent ... to supervise and conduct the sale” of said stock, with power “to appoint and employ sub-agents and to fix the amount of their remuneration upon the condition that the entire cost to the company of selling a unit of said stock shall not exceed twenty per cent (20%) of the selling price thereof.” Acting pursuant to the authority thus granted Binkhorst entered into a written contract with respondent whereby the latter was employed as “sales manager” to carry on the sale of said stock. Such contract was in the form of a letter addressed to respondent, signed by Binkhorst, and written from the corporation’s offices on