Opinion
Argued April 17, 1928
Affirmed June 26, 1928 Rehearing denied October 2, 1928
From Multnomah: JOHN H. STEVENSON, Judge.
For appellant there was a brief and oral argument by Mr. Meyer C. Rubin.
For respondent there was a brief over the name of Mr. C.M. Idleman, with an oral argument by Mr. McDannell Brown.
This is an action to recover money for services as a broker. It was tried by the court without the intervention of a jury. Findings of fact were made and a judgment rendered in favor of plaintiff. Defendant appeals.
The defendant, J.G. Tavares, entered into a contract with the Northwestern Electric Company to sell a large block of its preferred stock. In order to carry out its purpose he established an office in Portland and employed plaintiff. The par value of this stock was $100 per share and he agreed to pay him a commission of $3 per share for any stock sold or caused to be sold. There being several salesmen engaged, confusion arose at times as to who was entitled to commissions, as the same customer was at times approached by different salesmen who did not know that he had been solicited by his fellow agent previous to that date. In order to obviate this difficulty the defendant and salesmen mutually agreed that the salesman who first solicited a prospective purchaser of stock should receive the commissions due on any sale to such purchaser, regardless of who might close the sale.
In order that this plan might be systematically carried into effect, there was maintained in the office of the defendant what was known as the "pink card system"; this required every salesman soliciting a person, who might be considered a prospective purchaser, to make a report to the office, whereupon the salesman's name was entered on a card kept for that purpose, together with the prospect's name and the date of the first solicitation. This card was kept in a box in the defendant's office, indexed and open to the inspection of all of the agents, and remained in this box until the customer was disposed of. The "pink card" governed the payment of commission.
The plaintiff first solicited George Chandler and his wife to purchase some of the stock and made report thereof and had a card in proper form on file in the defendant's office which distinctly indicated that the plaintiff had been the first to solicit Chandler and his wife as prospective purchasers of stock and that they were his prospects. Afterward, and on the sixteenth and seventeenth days of March, 1925, and while the card was still in the index box, a sale of 265 shares of the stock was made to the Chandlers by defendant Tavares, through the Ladd Tilton Bank, as brokers. The bank received a check from defendant Tavares for its commission of 3 per cent on the purchase price.
AFFIRMED. REHEARING DENIED.
The defendant at the appropriate time moved the court for a nonsuit. Defendant challenges the complaint, the testimony and the findings of the court upon the grounds that the facts were insufficient to support the cause and judgment. The plaintiff alleged in his complaint, in effect, that plaintiff entered the employ of defendant and it was mutually agreed that plaintiff should receive 3 per cent of the face value of all of the preferred stock that he might sell of the Northwestern Electric Company, or cause to be sold. That as the agent of defendant he solicited George Chandler and his wife to purchase such stock and in detail set forth the report thereof to defendant's office and the filling out of the "pink card" and the deposit thereof, as stated above, according to the custom in defendant's office, entitling plaintiff to the agreed commission on the sale of any of said stock that might be sold to said prospective purchaser; that such arrangement "was a part of the contract of employer herein." That thereafter defendant sold and transferred to Chandler and wife, through the Ladd Tilton bank, 265 shares of said stock.
Plaintiff testified as follows:
"It was understood, and an agreement we had with Mr. Tavares at a luncheon among all of the salesmen. * * and Mr. Tavares agreed the pink card would govern as far as the commission was concerned as paid by the office"; that it was agreed to by Tavares and all the salesmen observed the rule.
The court ruled as follows: "I think you can include a custom as a part of the contract." Plaintiff claims it was a part of the contract. The witness stated Mr. Tavares said the pink cards would absolutely govern as to the payments of commission. The court made findings, in effect, embracing all of the facts mentioned herein.
Defendant contends that in plaintiff's pleadings and proof he is relying upon a custom which is not sufficiently shown to make it a contract. As we view the matter the so-called custom was agreed to by and between the plaintiff and defendant and became a part of the contract, not because it was a custom, but by virtue of the agreement of the parties as a part of the contract of employment. The arrangement is alleged in the complaint as a part of the contract. Although it is subject to be misunderstood, we think the same is sufficient.
The learned trial judge understood the contract as shown by his ruling. The record of the transaction of plaintiff's solicitation of the purchasers of the stock, and subsequent interviews by plaintiff with the Chandlers, the prospective purchasers, are shown on the "pink cards" in defendant's office and the transfer by defendant to the Chandlers of the stock is also shown as a record of defendant's office, both of which are in evidence. An agent other than plaintiff closed the deal with the Chandlers.
The testimony tended to show that plaintiff made a sale of the 265 shares of stock for defendant to the Chandlers within the meaning of the contract between plaintiff and defendant. The original contract of employment is admitted in defendant's answer in the following language:
"That on or about the 18th day of February, 1922, the plaintiff entered into the defendant's employ as a stock salesman under an agreement whereby said plaintiff was to receive three points (three dollars) per share on any shares of the said Northwestern Electric Company's 7% First Preferred Cumulative Stock sold by the said plaintiff on defendant's behalf."
The defendant contradicts the plaintiff in part and contends that the sale of the stock was made by defendant to the Ladd Tilton Bank and not to the Chandlers. There being some competent and substantial evidence to support plaintiff's claim, and the court having found in favor of plaintiff, such finding is of the same force and effect as the verdict of a jury and the court is not authorized to change the finding of the court.
We think the finding of the court plainly set out sufficient facts to support the judgment. Some irregularities are claimed by defendant in the rendition of the judgment which we do not deem sufficient to reverse the judgment.
Finding no error in the record the judgment of the trial court is affirmed.
AFFIRMED. REHEARING DENIED.
RAND, C.J., and COSHOW and BELT, JJ., concur.