Burcham v. Caprio

WILSON, J. Appeal by defendant from a judgment in favor of plaintiff.

Plaintiff is a merchandise broker and defendant is a manufacturer and packer of pickles and relishes. In 1945 and [515194]6 plaintiff acted as a merchandise broker selling defendant’s products on commission. There was a written contract between the parties whereby defendant agreed to pay plaintiff a commission of 5 per cent on the value of sales made by the latter. The rate of commission was changed by oral agreement from time to time covering individual sales, varying from 6 to 10 per cent. Plaintiff brought this action to recover a balance unpaid for commissions extending over a considerable period of time. Defendant answered denying the material allegations of the complaint and pleaded a counterclaim for damages arising out of alleged negligence on the part of plaintiff concerning the sale of two carloads of pickles and relishes.

The facts relating to plaintiff’s alleged negligence are as follows: One Frank J. Foley, a merchandise broker of Minneapolis, Minnesota, while in plaintiff’s office in Los Angeles, saw sample jars of defendant’s pickles and relishes; he told plaintiff that Nash-Finch Company of Minneapolis would buy such products if they were up to the standard of the samples which Foley examined; Foley communicated with the vice-president of Nash-Finch Company and was authorized to buy a carload of pickles; Foley placed the order with plaintiff who relayed it to defendant; the latter shipped a carload of pickles to Nash-Finch Company and before the same was delivered that company authorized Foley to secure two additional cars of defendant’s pickles, the same to be according to the specifications that had applied to the first carload; pursuant to such instruction Foley ordered two carloads of pickles from plaintiff and the latter delivered a sales memorandum to defendant covering the order.

After the latter order had been given Nash-Finch Company began receiving complaints concerning the first carload of pickles and an officer of the company directed Foley to cancel the order for the additional two carloads. Foley sent the order of cancellation to plaintiff and he delivered it to defendant. Defendant accepted the cancellation without protest. Defendant sold the pickles but at a price much less than he would have received under the Nash-Finch Company’s order. Defendant’s claim for damages against plaintiff is based on allegations in his answer and counterclaim that plaintiff fraudulently represented to defendant that the former had sold defendant’s merchandise to Nash-Finch Company; that he had not sold merchandise as represented by him, and that plaintiff wrongfully cancelled the sale of the merchandise without authorization from defendant and wrongfully accepted the cancellation