Millard v. Dether

McCOMB, J. From a judgment in favor of plaintiff after trial before the court without a jury in an action for an accounting and to recover money allegedly due plaintiff pur[894]suant to a contract entered into between the parties, defendant appeals.

Judgment was entered in favor of plaintiff for $9,775.75.

Facts: Plaintiff, pursuant to two agreements, one dated July 21, 1950, and the other September 16, 1950, undertook to act for defendant as a sales representative at a commission fixed by the agreements. The first agreement provided that it was a tentative agreement and subject to change 60 days from the date of signing. It provided that plaintiff should receive a commission of 10 per cent on gross sales accredited to him. The second agreement read thus:

“Agreement

“I the undersigned Arthur P. Dether doing business as the D & M Manufacturing Company, do hereby agree to pay H. B. Millard (50%) fifty per cent of any increase in prices of any and all bids or work contracts the D & M Manufacturing Company secures through the efforts of H. B. Millard.

“Also on all orders or contracts of the above nature H. B. Millard is to receive (10%) ten per cent of the gross amount less the (50%) fifty per cent to be paid him on increased amounts prices over the original quotations by Arthur P. Dether.

‘1 Signed this 16th day of September 1950

“D & M Manufacturing Company

“A. P. Dether.”

The trial court after receiving parol evidence of the intention of the parties, for the purpose of determining the ambiguity in the second paragraph of the agreement of September 16, 1950, made the following finding:

“The Court finds that on or about the 16th day of September, 1950, plaintiff and defendant entered into an amendment to the agreement of July 21, 1950, in writing, whereby defendant agreed to pay plaintiff a commission of fifty (50%) per cent of any and all amounts over and above the bid price quoted by defendant on all contracts secured through the efforts of plaintiff; that on all such contracts an amount equal to said commission of fifty (50%) per cent of the increased amount would be deducted from the total gross sales amount and a further commission of ten (10%) per cent of the balance would be paid to the plaintiff by the defendant.”