Brokaw-Eden Manufacturing Co. v. Lockerbie

Braley, J.

The defendant, while not questioning the auditor’s findings that the plaintiff sold and delivered to him goods according to the account annexed, contends, that under the second count of his declaration in set-off he is entitled to recover by the terms of the Contracts of May 1, 1916, referred to in the record as exhibits “D,” “E,” and “F,” a sum in excess of the plaintiff’s entire claim. The auditor’s report, which was the only evidence at the trial, states that, prior to the date of any of the six contracts appearing in the record, the defendant had acted as the plaintiff’s sole and exclusive agent for the sale of the “Eden Electric Home Laundry Machine” within a designated but very restricted field. The defendant, however, during his agency “had conceived or improved an electrical device known and called an ‘Electric Vacuum Cleaner’ which had been manufactured for him by the Pneuvac Company, and for which he had created a market under the name of Red E and a public demand therefor. At some time the attention of the plaintiff was directed to this . . . cleaner and . . . negotiations began . . . looking toward a contract whereby the plaintiff was to purchase and the. defendant supply cleaners of this description.” The defendant, not being financially able to enter into a contract of the magnitude contemplated, “introduced the plaintiff ... to the Pneuvac Company for the purpose of establishing a relation between the *466 plaintiff” and the company whereby the company “was to manufacture for the plaintiff, cleaners of the same type as that therein-before conceived or improved by the defendant, he to benefit as thereafter agreed.” The contracts dated January 17, 1916, and designated in the record as A, B and C, were simultaneously executed, and the plaintiff thereunder received the full benefit of the defendant’s services as its “exclusive sales agent for the New England States, for all Eden and Brokaw-Eden products.” The Pneuvac Company undertook to pay the defendant upon receipt of payments from the plaintiff “for said machines, the difference between eleven . . . dollars and the price at which the machines are billed to and paid for by the said Brokaw-Eden Manufacturing Company.” The plaintiff having ordered “two thousand of said machines ... to be billed at $12 each,” the defendant’s commission, if the transaction was completed, would be one dollar on every cleaner. The payments however were made by the plaintiff although the money was derived from the Pneuvac Company. By contracts D, E and F, dated May 1, 1916, those agreements were cancelled, and thereafter the plaintiff obligated itself to make the payments, which were reduced to fifty cents, “on each electric vacuum cleaner purchased.” In order to determine the basis on which all parties to the new arrangement intended the computation should rest, these contracts, as the defendant contends, may be construed in so far as material as one instrument. Makepeace v. Harvard College, 10 Pick. 298 , 301. By contract E the plaintiff “places its order [with the Pneuvac Company] for ten thousand or more of said machines, and such of attachments as it may require, subject to all the terms and conditions of this agreement.” It appears that no cleaners satisfactory to the plaintiff ever were delivered by the Pneuvac Company, and, the contract between them having been mutually cancelled without the defendant’s knowledge, he is left to the contention that the order in question is the equivalent of an order for “ten thousand or more of said machines,” as if they had been on hand and ready for delivery, title to which passed to the plaintiff. Go ddard v. Binney, 115 Mass. 450 . White v. Solomon, 164 Mass. 516 . But it is plain that, until their manufacture and delivery, the cleaners had not been purchased within the meaning of the contract, and, no commissions having been payable to *467 the defendant, he cannot maintain his set-off, and the verdict for the plaintiff’ must stand. Barrie v. Quinby, 206 Mass. 259 ,, 267.

So ordered.