
    The Wagner Brothers Co. v. Younce, d. b. a. O. S. Younce Sales Co.
    
      (Decided November 23, 1931.)
    
      Mr. Clinton Egbert, for plaintiff in error.
    
      Messrs. Kusworm & Shaman and Messrs. Andrews, Andrews S Rogers, for defendant in error.
   Hamilton, J.

O. S. Younce, doing business as O. S. Younce Sales Company, brought suit against the Wagner Brothers Company, a corporation, wherein the Younce Company sought judgment in the sum of $1,200, with interest, claimed to be due it by virtue of a certain contract.

The Younce Company, in the amended petition, alleges that on or about June, 1925, it was a retail distributor in Dayton and surrounding territory for the products manufactured, sold, and distributed by the Berghoff Beverage Company, of Fort Wayne, Indiana, and as such distributor had worked up and developed a large number of customers and distribution routes for said products in the cities of Hamilton and Middle-town, and other territories in Butler county, Ohio, and that it was engaged in selling said products and distributing the same to its customers throughout said portions of Butler county, Ohio, after purchasing same from the Berghoff Beverage Company; that on or about June, 1925, it sold said business of the distribution of said products of the Berghoff Beverage Company in the city of Hamilton, Butler county, Ohio, and the surrounding territory of said county, to the defendant, Wagner Brothers Company and sold the patronage and good will theretofore developed by the efforts of plaintiff and its employees in said territory, and in consideration therefor the defendant, Wagner Brothers Company, agreed to pay the snm of $1,500, $200 in cash to be paid at once and the remainder in installments of $100 upon receipt by defendant of each carload of the products of said Berghoff Beverage Company.

Plaintiff states that it fully complied with said agreement of sale, but that the defendant has failed to pay the balance due, to wit, the sum of $1,200, admitting that $100 was paid to one Berdas for plaintiff.

The answer of Wagner Brothers to the amended petition denies that the Younee Sales Company was the retail distributor in Dayton and surrounding territory for the Berghoff Beverage Company; and denies that the plaintiff as such distributor of the Berghoff Beverage Company’s products had worked up and developed a large' number of customers and a distributor’s route for said products in the cities of Hamilton and Middletown, and in other territories in Butler county, Ohio; denies that plaintiff sold to it said business of the distribution of said products of the Berghoff Beverage Company in the city of Hamilton, Butler county, Ohio, and surrounding territory, or that it sold to it for the sum of $1,500 the patronage and good will theretofore developed by plaintiff. Defendant denies that Younee withdrew his trucks from operation in Butler county, or turned over the patronage and good will of said business to defendant, as claimed in plaintiff’s amended petition. The answer further denies generally the allegations of the amended petition.

Further answering, Wagner Brothers Company alleges that Younee represented to the officers of the defendant that he was the sole owner and had control of the distribution of the products of the Berghoff Beverage Company in the city of Hamilton, and solicited defendant to bny from him the right to distribute such products in the city of Hamilton, Ohio, for the sum of $1,500; that at the time said solicitation was made Younce represented to defendant that he had worked up in the territory of Hamilton, Ohio, a valuable, permanent, and lasting patronage for the products of said Berghoff Beverage Company; and that the right to sell to such persons was included in the contract he sought defendant to make with him. Defendant says that it refused to accept the offer of plaintiff, and that thereupon plaintiff offered to include in the territory sold to it the city of Middletown, Ohio, and agreed with defendant that he would assist it, its officers and agents, in meeting the trade which plaintiff claimed he had previously worked up, and a list of patrons in Hamilton and Middletown was shown to defendant at the time said offer was made. The answer alleges that defendant agreed with plaintiff that if the names on the list submitted by him were customers for the products of the Berghoff Beverage Company, and that if plaintiff had the sole and exclusive right to sell said products in Butler county, Ohio, it would pay the sum of $200 when the first two cars of such products were delivered, and an additional sum of $100 for each carload, if the list of patrons submitted by plaintiff would enable defendant to make a profit in the handling of such products.

The answer further alleges that Younce did not own the distributing rights for the cities of Middletown and Hamilton or the county of Butler; that the list of patrons of said products submitted by Younce was incorrect, inaccurate, and worthless; that Younce and his friends refused to assist defendant in any way in meeting the customers of defendant, or securing further business for defendant, unless defendant agreed to pay an additional sum of $100, which sum defendant paid. The answer further states that the list of patrons was inaccurate, false, untrue, and worthless, so that it was of no help to the defendant in the sale of the products of the beverage company.

Defendant further avers that it made no profit from any sales to any customers of Younce, and that, therefore, it is not indebted to him.

The trial of the case resulted in a verdict for the Younce Sales Company, plaintiff, in the sum of $1,200. Judgment was entered on the verdict, and Wagner Brothers Company prosecutes error, claiming the verdict and judgment are against the weight of the evidence. It further claims error in the charge of the court.

Evidence was introduced by the plaintiff tending to establish the claims set forth in the amended petition.

Evidence was introduced by the defendant tending to refute the claim of the plaintiff as to the terms of the contract, and on the question of misrepresentation.

These matters were purely jury questions. If the jury believed the evidence produced by the plaintiff Younce, it was justified in returning the verdict that it did.

It is argued by counsel for plaintiff in error that there was no evidence to show that Younce had distributing rights in Hamilton, Ohio, or Butler county, and it is claimed that the evidence showed conclusively that Younce did not have the right to sell the list of his customers to Wagner Brothers Company, that these customers belonged to one Berdas, and that this being true, there was no consideration for the oral contract claimed.

We are unable to agree with counsel on this proposition, for the reason that the evidence clearly established that Younce had a large business in Butler county, particularly in the cities of Hamilton and Middletown, and that Wagner Brothers Company was one of his largest customers.

Younce claimed that he was protected by the Berghoff Beverage Company in all territory he developed; that he had the distributing rights; and that he owned the distributing rights was testified to both by Younce and by Berdas.

There was evidence, therefore, tending to show that the Younce Sales Company had distributing rights in Butler county, Ohio.

It is claimed that the list of customers was of no value, but the evidence is to the effect that after the contract Wagner Brothers did deal with and make large sales to former customers of the Younce Company.

We are, therefore, of the opinion that the jury could well find in favor of Younce in his claim of an oral contract, and it was shown that under the contract there was a balance due of $1,200, provided the Wagner Brothers Company had purchased and distributed from the Berghoff Beverage Company at least twelve carloads of beverages; and that they had purchased and distributed as many as twelve carloads is testified to by Wagner himself, who states that they purchased and distributed approximately sixteen carloads.

Complaint is made of the following charge of the court to the jury: ‘ ‘ The court says to you if you find for the plaintiff your verdict must be for the sum of $1,200, and plaintiff would be entitled to interest upon each $100 installment from the date you find same to be due and owing to plaintiff, at the rate of 6% per annum. The court has prepared for you two forms of verdict, one finding in favor of the plaintiff and fixing the amount in the sum of $-. The court says to you if that is your form of verdict you will insert in the blank space provided the sum you believe plaintiff entitled to recover. This sum must be $1,200, plus whatever interest you believe plaintiff entitled to recover ; but the whole sum, principal and interest, must be stated in one lump sum. ’ ’

It is argued that the court gave the jury no discretion to find the amount due on this contract, other than to determine the amount of interest; that this charge left no discretion on the part of the jury except that in the event they found for the plaintiff they must give plaintiff at least $1,200, as prayed for in the amended petition.

One of the chief grounds advanced in the evidence of the defendant company for non-payment is that it was only to pay if it made enough profit from the handling of the business from each carload, and Wagner testified that the company made no profit from any of the business acquired from Younce. The court charged the jury as follows:

“The issues involved in this particular case for your determination may be stated as follows:

“Did the Defendant agree to pay the Plaintiff the sum of $100 per car load as alleged in Plaintiff’s petition, or was the agreement that said $100 per car load was to be paid only in the event that Defendant made a profit in said business? If you find that the Defendant agreed to pay to Plaintiff the sum of $100 per car load regardless of his profits, then Plaintiff is entitled to your verdict. If you find that this agreement was to pay $100 per car load only in the event that he made a profit in said business, and you further find that Defendant did not make a profit in said business then your verdict should be for the Defendant. ’ ’

“The Court tells you that the burden of proof in this case is upon the Plaintiff to prove that the terms of the agreement were as he alleges in his petition. ’ ’

It will be noted that under this charge of the court the judgment must necessarily be for the sum of $1,200, with interest, unless the jury found that it was only to be paid if the defendant Wagner Brothers Company made a profit; and if no profit was made the verdict must be for the defendant. Since the defendant Wagner Brothers Company admitted having bought and distributed direct from the Berghoff Beverage Company approximately sixteen carloads, the amount involved in any verdict that the jury might return would necessarily be for the sum of $1,200, or nothing.

It appears that no award of interest was allowed by the jury, so that the defendant was in no way prejudiced by the question of interest.

We are, therefore, of opinion that the court did not err when it charged the jury that the verdict'must be for the sum of $1,200, or in favor of the defendant.

We find no error in the record, prejudicial to the rights of the plaintiff in error, and the judgment of the court of common pleas of Butler county is therefore affirmed.

Judgment affirmed.

Boss, P. J., and Cushing, J., concur.  