Duncan v. F. A. Hihn Co.

KERRIGAN, J.

This is an action brought to recover the sum of $1327.56, with legal interest from January 12, 1911, and costs, the plaintiff contending that the amount is due from the defendant as the assignor of the California Pine Box and Lumber Co., a corporation. The court gave judg

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ment in favor of the defendant, and denied plaintiff’s motion for a new trial, from which judgment and order this appeal is taken.

Plaintiff’s claim is founded upon a written contract entered into between said California Pine Box and Lumber Co. and defendant by correspondence. The Box Company was engaged in the business of manufacturing and selling, among other things, fruit boxes. White and De Hart Co. had for some time been the agent of the Box Company in Watson-ville Territory. In the year 1908 P. A. Hihn Co., desiring to represent the Box Company in that field, entered into a contract with it, by the terms of which the former was to receive twenty-five per cent of the total commissions payable on the business done by White & De Hart Co. and itself should its individual sales amount to twenty-five per cent or more of such business; and in the event of its sales amounting to less than twenty-five per cent of such combined sales, it was to receive five per cent commission on the actual sales it made. The contract was entered into in April, and was to be effective until December 31, 1908. In effect, the contract provides that if the P. A. Hihn Co. should make one-quarter or more of the sales effected by the joint efforts of itself and its co-agent in the Watsonville section, the total commission was to be shared in certain proportions; otherwise P. A. Hihn Co. was to receive five per cent commission only on the sales made by it.

No doubt, as suggested by the plaintiff, the defendant was anxious to get a footing in the fruit box business in and around Watsonville, and to that end was willing to make concessions in favor of the old and principal agents of the Box Company; and perhaps, too, the defendant did not expect to sell much more than one-quarter of the boxes to be disposed of by the joint agency. However that may be, the fact is it sold nearly half as many; and it now contends as it did in the trial court, that it is entitled not to twenty-five per cent of the commission due on the combined sales, but to five per cent on all sales made by it. In making returns to the Box Company it credited itself with commissions on this basis. The suit, which was brought by the assignee of the Box Company, is to recover the difference between the amounts arrived at by these different methods of calculation.