Nicolas Hernandez & Co. v. W. T. Welisch & Co.

THE COURT.

We approve the conclusion of the district court of appeal in this case that, under the contract made between the plaintiff and the defendant, the plaintiff’s share of the profits on orders received directly or indirectly from the island of Porto Rico was not to be more than one-half of the amount of commissions or profits received by the defendant. In making the calculation, however, the district court included, as a part of the profits, the sum of $650, being six and one-half cents per pocket on 100 pounds on the sale of 10,000 pockets made on June 15, 1918. It appears from the findings that the defendant did not receive $650, either as commissions or as profits, on that sale, but received only one-half thereof, that is, $325; the result is that the computation made by the district court of appeal allows the plaintiff $162.50 in excess of the amount it is entitled to. The opinion stated that the amount shown by the findings as due to the plaintiff was $3,325, that being one-half of the total sum of $6,650. It should have stated that the amount for which the plaintiff was entitled to judgment was the sum of $3,162.50, being one-half of $6,325.00; which the findings show to be the total amount received by defendant, and that he was entitled to interest on $2,000 thereof at seven per cent per annum from May 10, 1918, and interest on the balance from the date of the commencement of -the action.

With this modification, the opinion of the district court is adopted. Excepting the last paragraph thereof, which, as above stated, we find erroneous, the remainder of the opinion is as follows:

[151]

“This is an appeal by plaintiff from a judgment in its favor in the sum. of $2420, its contention being that the judgment should have been for a greater sum.

“Both the plaintiff and the defendant are rice brokers, the former doing business in the island of 'Porto Rico, and the latter in San Francisco, California. They entered into a written contract by which the plaintiff agreed to conduct in Porto Rico a branch office of and for the defendant, the contract being in the form of a letter addressed by the defendant to the plaintiff, the terms of which the latter accepted. Among the provisions of said contract were the following:

“ ‘Division of profits. On all sales confirmed by us we will allow you five cents per pocket of 100 pounds, which is one half of our profit, as soon as we receive same from seller.