
    DeLoach Mills Manufacturing Co. v. Middlebrooks.
    
      Action by Agent, for Commissions on Sales.
    
    1. Relevancy of evidence as to sales by other agents. — When plaintiff sues for commissions on sales of machinery made or effected by him as agent for defendants, they can not be .allowed to prove they had other agents in the county who were authorized to make sales for them.
    
      2. Impeaching witness. — A witness can not be impeached by evidence contradicting his testimony as to an immaterial inquiry.
    Appeal from tbe Circuit Court of Conecub.
    Tried before tbe Hon. JohN P. Hubbard.
    Stallworth & Burnett, for appellant.
    EarNHAm; & Crum, contra.
    
   MoCLELLAN, J.

Tbis action is by Middlebrooks, for commissions on sales wbicb be alleges were made or “worked up” by bim, for tbe defendant company as its agent. There is no conflict in tbe evidence as to tbe agency, or tbe terms of it. Plaintiff was authorized to make sales of machinery, &c. for defendant, and was to receive fifteen per cent, commissions on all sales made by bim, and also on all sales wbicb resulted from bis efforts — were “worked up” by bim — though not in fact consummated by or through bim. Tbe only material controversy as to tbe facts was in respect of tbe inquiry whether tbe sales upon wbicb commissions were claimed bad been made, or “worked up” by tbe plaintiff. And in tbis connection tbe defendant corporation sought to prove that it bad other agents for tbe sale of its wares in Conecub county, where plaintiff resided and did business. Tbe court, we think, properly excluded tbis proposed evidence from the jury. It was irrelevant to'the issue. To have admitted it would have been to allow tbe jury to find that plaintiff bad not made or “worked up” tbe alleged sales, from tbe mere fact that they might have been made by another agent, without any proof that they were so made, and notwithstanding, even though it bad been further shown that they were actually made by another agent, yet they might have been “worked up” by tbe plaintiff in such sort as to entitle bim to tbe commissions be claimed.

Nor can tbe admissibility of tbis testimony be rested on tbe theory, that it went to impeach plaintiff as a witness. Whether or not be bad testified that defendant bad no other agent in that territory, be could not be impeached by evidence contradicting bim in that respect, because neither bis rights, not defendant’s liability, depended upon that fact; it was an immaterial inquiry, wbicb could not be gone into for tbe purposes of impeachment. — Griel v. Solomon, 82 Ala. 85.

Tbe only objection urged to that part of tbe court’s general charge to wbiob an exception was reserved is, that “it assumed facts of which there was no evidence.” The objection is untenable. It predicates only these facts : that there was a contract on the part of defendant to pay plaintiff fifteen per cent, commissions on all sales made or “worked up” by him, and this is uncontroverted; that plaintiff “worked up” the sale to Deer, and this plaintiff’s evidence tends to establish; and that a sale was made to Deer, which is undisputed.

Charge one requested for defendant is faulty, in that it assumes that plaintiff had failed to prove a material fact in his case, having reference, we suppose, to plaintiff’s connection with the sale to Deer, since that fact only was in dispute. There was evidence tending to show that plaintiff’s efforts had brought about this sale, and its sufficiency was for the jury. It was not for the court to assume, but for the jury to determine, whether it had or had not been proved.

Charge two requested for the defendant was well refused on the ground of its being abstract, if upon no other ground. Its assumption that defendant became liable to pay, or had paid, commissions on these sales to some third person, in consequence of plaintiff’s negligent delay in giving notice of his claim, is entirely gratuitous; there is no such evidence in the record.

The judgment of the Circuit Court is affirmed.  