Dimond v. Bessemer Gas Engine Co.

THE COURT.

This action was brought by plaintiff to recover the sum of $2,995 for money alleged to have been laid out and expended by him on behalf of defendant, and for damages. Judgment went for plaintiff in the amount prayed for, and this appeal is from the judgment and from an order denying defendant’s motion for a new trial.

The cause of action was based upon a contract of agency claimed to have been entered into between plaintiff and defendant. Several grounds are relied upon for a reversal, but as we view the evidence, we are of the opinion that it fails to show that any contract whatever existed between plaintiff and defendant, and our consideration of the case may be confined to this question alone.

The evidence may be summarized as follows: Defendant is a foreign corporation engaged in the manufacture of gas-engines in the state of Pennsylvania. On the twenty-first day of March, 1912, it entered into a written contract with one Julius Beeman for the sale of its engines in the states of Arizona and California. In the latter state Kern County and

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the oil fields were excepted from the operation of the contract for the reason that defendant in these locations maintained its own sales force and employees, and sold directly to the trade. Under the terms of his contract Beeman agreed to cover all but the excepted territory with a selling organization, and to manage the same, and any of the stated territory not looked after by Beeman was under the agreement to be considered open territory by defendant company. It was expressly stipulated in the contract that Beeman was to be a dealer merely, and that the company would assume no liability for expenses or debts contracted by Beeman. The contract further provided that Beeman was to install the engines sold by him without cost or expense to the company. The compensation which Beeman was to receive under the contract was the difference in the costs of the engines to him, which was fixed by schedule attached to the contract, and the amount he received from the purchaser.

After the execution of this contract between the parties Bee-man organized his sales force in the territory contracted for. In the state of California he did business under the firm name of “The Bessemer Company.” On or about June 23, 1912, Beeman and plaintiff entered into a written contract, whereby the latter became a member of Beeman’s selling organization in California. This contract provided in substance that plaintiff should canvass certain allotted territory for Beeman; that at his own expense he should open and maintain an office in San Francisco; that within a given period of time he should sell at least twelve thousand dollars’ worth of engines, basing this sum on the cost price to him, and as compensation for his services that he should receive the difference between the cost of the engines to him as fixed by Beeman, and the amount paid for them by the purchaser. This was the only compensation he was to receive for his services. This contract was made in conformity with the contract Beeman had with the defendant company, the terms of which plaintiff was familiar with, it being expressly made a part of his contract. Upon the conclusion of this arrangement plaintiff opened offices and proceeded to canvass for the engines he had contracted to sell. He obtained certain orders, but experienced difficulty in making deliveries. The delay in this respect was due to factory strikes and other troubles that defendant company was contending with. Plaintiff’s agreement with Beeman made no