
    The Toledo Edison Co. v. Roberts.
    (Decided May 28, 1934.)
    
      Messrs. Tracy, Chapman & Welles, for plaintiff in error.
    
      Messrs. Fritsche $ Winchester, for defendant in error.
   Richards, J.

In the Court of Common Pleas Robert Roberts commenced an action to recover $875.64, claimed to be due him as commission as a salesman for The Toledo Edison Company. The trial resulted in a verdict and judgment in his favor in the amount of $994.70.

The plaintiff in error insists that the trial court was in error in refusing to direct a verdict in its favor at the close of all the evidence; that there were errors in the charge, and that the court erred further in modifying instructions to the jury which had been given before argument at the request of the company. The answer was a general denial and a plea of accord and satisfaction.

Roberts was employed by the company as a salesman at a commission of 9% on sales made by him for the company. This covered electrical materials, supplies, equipment and service, and this rate of compensation was claimed by him to apply to all sales except Mazda lamp bulbs. This employment continued for a considerable period of time, and then it developed that a prospect existed for getting a contract with The Toledo Driving Park, Inc., in a large amount, for a very substantial quantity of material to be installed. Two contracts were ultimately made between The Toledo Edison Company and The Toledo Driving Park, Inc., the first, in the amount of $15,722, and then, about six weeks later, another in the amount of $4,203.82. When the possibility of securing these contracts arose another representative of the company in the department in which Roberts was working looked after the making of plans and specifications, computations, etc., as to the costs, and he installed poles, wires and lights for demonstration purposes, and took part in the negotiations looking to the securing of the contracts. It does not appear that Roberts alone could have secured these contracts. In making computation sheets, and in determining what price to ask, the amount of compensation which was to be paid to Roberts on these contracts was stated in the sheets as 5%, and Fanning, the representative of The Toledo Edison Company, testifies that he showed these sheets to Roberts and that Roberts knew the amount of his commission on these contracts was stated on the sheets to be 5% in the event the contracts were secured. Fanning testified further that Roberts at that time made no objection to his commission being 5% on these large contracts, but continued to assist in securing and closing the contracts, with the knowledge, as testified to by-Fanning, that the company would only allow him 5% on them. Roberts, however, denies that he had knowledge that the commission was to be 5% on these contracts, and insists that it was to be 9%, the same as he had been receiving on sales theretofore made by him.

A Iona fide dispute existed, therefore, between The Toledo Edison Company and Roberts as to the commission to which he was entitled on the two jobs secured from The Toledo Driving Park, Inc. Clearly, this constituted an unliquidated demand in favor of Roberts and against the company. Each of these parties honestly controverted the claim made by the other. The claim was not a liquidated one, because there was an honest dispute over the amount claimed to be due. It has long been settled that where it is admitted that one of the two specified sums is due, but there is a dispute as to what is the proper amount, the demand is regarded as unliquidated, as applied to an action involving the question of accord and satisfaction. The authorities on this subject are numerous and I cite only Hanley Co., Inc., v. American Cement Co., 108 Conn., 469, 143 A., 566; Chicago, Mil. & St. P. Ry. Co. v. Clark, 178 U. S., 353, 20 S. Ct., 924, 44 L. Ed., 1099; Nassoiy v. Tomlinson, 148 N. Y., 326, 51 Am. St. Rep., 695.

Under these circumstances the company having paid certain sums to Roberts drew him a check on July 14, 1929, for $717.52, which they insisted was.the balance due him computed at 5% ; he, however, contended that there was due him 4% more than the amount of the check. The following words were printed on the back of the check drawn to his order:

“My endorsement hereon is an acknowledgment of the payment to date of this check for services rendered to The Toledo Edison Company.”

Roberts accepted the check, erased the words above quoted, and endorsed the check, drawing the money thereon. It was perfectly understood between them that the check was drawn for the amount which The Toledo Edison Company conceded remained due to Roberts on the Driving Park contracts. The erasure of the words printed on the back of the check could not avail Roberts. His duty was to accept it as it was, or return it.

The case falls directly within the principle stated in Seeds Grain & Hay Co. v. Conger, 83 Ohio St., 169, 93 N. E., 892, 32 L. R. A. (N. S.), 380; 1 Ohio Jurisprudence, 164, and the court should have granted the motion made at the conclusion of the evidence to direct a verdict in favor of the company. As a verdict should have been directed, the other errors which are claimed to have been committed become unimportant.

Judgment reversed and final judgment rendered for plaintiff in error.

Judgment reversed.

Lloyd, J., concurs.

Williams, J., not participating.

On Application for rehearing.

(Decided June 25, 1934.)

Richards, J.

On application for rehearing it is complained that the court drew the inference that a bona fide dispute existed between the parties as to the amount of compensation, and that this was a question for the jury. All of the evidence on both sides indicates the existence of a bona fide dispute between the parties on that matter, and there was, therefore, nothing to leave to the jury as to the existence and character of the dispute. This misunderstanding did not arise in February, 1934, as claimed by counsel for Roberts, but dates back to the time of the employment. Roberts testified that he was to have 9% on all sales except on lamp bulbs, while Fanning testified that the contract of employment excepted not only lamp bulbs but that there was a separate schedule for commission “where sales were made through the floor.”

The existence of the dispute was recognized and emphasized by Roberts when he erased the words printed on the back of the check before cashing it.

Application for rehearing denied.

Lloyd, J., concurs.  