
    KARSTEN, Appellant, v. ROOT, Respondent.
    (167 N. W. 147.)
    (File No. 4215.
    Opinion filed March 26, 1918)
    1. Trials — ^Appeals—General Verdict on Conflicting Evidence, Presumption Favoring Verdict.
    Where a jury finds a general verdict upon conflicting evidence, the -Supreme Court will on appeal resolve the evidence in ■ favor of the verdict.
    2. Principal and Agent — Commission Sales — Agent’s Profits Under Contract — Net Commissions, Measure of Damages — Instruction — Burden of Proof.
    Where, in a suit to recover on an account for pianos and other merchandise, defendant counterclaimed for damages for breach of agency sale contract, in that plaintiff wrongfully sold certain pianos which under1 the contract defendant had the exclusive right to sell, held, that the measure of defendant’s damages was the gross amount of commissions he would have received per piano, that being what he would have received by ■performance of the contract, and not the net commissions above costs and expense incurred by the agent in malting the. sales and in advertising the pianos for sale; since it appeared that the agent had for many years been engaged in an established piano business and sold many other makes of instruments; nor could such expenses, incurred before commencement of suit, could not be added to the commissions in measuring damages; and trial court’s instruction accordingly was not erroneous as misleading or as a rule of damages. Held, further, that the burden of proof was on plaintiff to show that defendant incurred other expenses, after suit begun.
    3. Evidence — Commission Sale Contract, Wrongful Sales by Principal, Selling Price Evidence of, Materiality.
    In a suit upon contract, involving alleged wrongful sales by plaintiff of pianos which defendant, under a commission contract for their sale, claimed the exclusive right to sell, and for which he had counterclaimed, field, that the price at which ■plaintiff sold the pianos was immaterial.
    Whiting, P. J., concurring specially.
    ' Appeal farra Circuit Court, Beadle County. Han. Alva E. Taylor, Judge. '
    Action by A. C. Kars-ten, against D. O. Root, to recover upon an account for merchandise sold defendant; defendant counterclaiming. Erom a judgment for defendant, and from an order denying a new trial, iplainlbiff aipipieall’s.
    Affirmed.
    
      Crawford & Warren, for Appellant.
    
      Null & Royhl, for Respondent.
    
      (2) To point two of the opinion, Appellant cited: Civ. Oodle, Seos>. 2293, 2329; Cincinnati Gas Illuninafting- Company v. Western S. L. Oo., 14 Sup. Ot. Rptr. 523; Russell, et al, v. Horn, étc. Míg. Co., (Neb.) 59 N. W. 901; Howe Sewing Machine Company v. Bryson, et oil, 44 Da. 159; Hal v. Stewart, (la.), 12 N. W. 741; Fontaine v. Baxley, (Ga.) 17 S. E. 1015; Davis, v. Tubbs, 7 S. D. 492; Bowens v. Graves, Vinton Oo., 8 S. D. 390.
    Respondent cited: Crammer v. Kohn et al., 7 S. D. 247.
   McCOY, J.

Plaintiff instituted this action to recover on am account the sum of $579.95 for pianos andl other merchandise, alleged Itio have 'been sold) and delivered to defendant by tire Wick Piano 'Company, and whicih. account had been assigned to .plaintiff. Defendant answered, admitting all of said account excepting $71.41 thereof, which wlals- denied. Defendían,t aliso pleaded a counterclaim for damages arising from an alleged breach of Contract between the Wick Piano Company and defenid'anit, to the effect that by virtue of said contract defendant was to have the exclusive right to sell piamos fot salildl company within, certain specified territory a-ncl to receive commissions from, -saidl Wick Piano Company for such, sales; that defendant had been to expense in advertising -and otherwise placing before his. customers such (pianos for sale; Itihiat in vioktSoin rif said contract said company sold '12 or more piano®1 within, said' territory, for, which defendant would have received a commission of $50 or more tficir each piano s'o soldi in viefetion of the tarms’ of said contdaiot; such' commission and expense ¡amounted to tire sum of $75°) which ¡amount, to the extent of pl'aiiint'iff’s claim, defendant cfemandtedl to have counterclaimed1 atari set off against the plaintiff’s [cause of ¡alaSk». Plaintiff interposed a relply to said1 counterclaim, denying the 'allegations fthelteiof, and 'a-ls'O alleging that if said contract was ever made the same had) been mutually ahan'dioned an'.d1 canceled and never beoame operative, and that defendant was not dlamageidl by any violation' thereof. On tire trial verdict was 'rendered in favor of dlefenidlant upon all the issues, and judgment thle'r'eion aldaonclingly rendered ini favor of defendant, from which! plaintiff appeals, assigning various errors.

The jury having .found a general verdict for defendant, for itih'e purposes of tibisi appeal all comfli'ot in the evidence must be resolved in his fador. We are of tibe opinion that the evidence was dearly sufficient to sustain the verdict. It will! serve no- useful 'purpose to further refer thereto.

This ciase was 'before this' count on a former appeal (36 S. D. 111, 153 N. W. 932), and ¡tibe judgment reversed on 'the sole ground ¡tihiait die court erred in instructing the jury that the contract was in -full force and) effect until such time as the jury should find that a written notice off cancellation thereof had been given. Hiere halving been some evidence to! the effect that -the contract tod been mutually abandoned) and canceled and' so acted upon without a writing, by the farmer opinion lit was held that such question should have been -submitted) to the jury. On- the last triad the evidence was substantially the same as on the ■former, andl Itlre question of mutual abandonment an'd dancellaiticn was properly ushmitted- to the jury ian!d a finding- thereon madle in fiaivor of 'defendant. On eta last trial the court instructed1 the jury that under and dbiing the lifetime of the contract de■fend'ant would be entitled to the utsulal and ordinary commissions o)r profits on all Wick pianos solid in said territory by the Wick Company in violation of said contract. Appellant contends that this' ins'truictioin wias misleading, -and gave to the jury a wrong-rule or measure of dlamage. W'e are of the opinion that this contention- fe not -wel token. A similar question, was before (the court in Baskerville v. Garr-Scott Co., 14 S. D. 1, 84 N. W. 204, and in that case thle 'court 'held that such commissions were recoverable. By the prior decision of this count in this identical case lit wiais held] tlhlait suida commiissions were recoverable. It is urged that respondent shlduldi recover, in any event, only net profits or commisdibns, .and that whatever costs and expense would have been incurred by 'respondent in malting the sales should have •been deducted from the gross commissions and a recovery be had for the net commission or profit. We are lc!f the view that under ■some 'circunistances this contention o.f appellant would he right, but every caise of this character should stand upon its own circumstances. In this case it appears 'that respondent for many yeiars bad been engaged in an established piano business' and sold many other makes of instruments. Respondent's testimony- tended to show that ihie. bad' extensively advertised the piano in question among his customers, and had made trips over said) territory by automobile, advertising such • piano -along with his general business, and that itf-s expense bald .been incurred arid paid before this action, and before bis knowledge of the' s'ales made by the piano company to violation of s'aid contract, >and ¡there is no. testimony tending to show any other expense that respondent would have been to under the contract; .and, while we are of the view that respondent wotflld nidt have been entitled to 'recover the expenses he had already incurred and paid in addition to the .commissions1, still we are of tibe view, under the circumstances of this case, itihiat he was emtitfadl. to recover tihe full amount of the commissions he would have received! had be made ¡the sales 'instead of the piiiaao company. Under the ciilrCumstanee's of this case that is .what respondent would have received had the contract been fully -carried out and performed .according to the -terms thereof.

^hie itiri'al court sustained • the objection, to evidence tending tia show the price at -which the company sold the 12 pianos1 in violation of said contract, on the ground that such testimony -was immaterial. Wfe are of the -opinion that s-uidi objection w'as properly sustained, 'Otherwise a party s'd violating such a cDnfract, if he- made sales low enough, could1 -defeat any recovery aga-inist himself, although he had greatly damaged the other .parity to the contrlacf;. The real bone oif contention, tried .out by the trial court, was the iis-suie ¡of mutual abandonment and cancellation oif -the contract, and nicit the question as1 to the amount of commissions to- wlhElch .respondent might be entitled in case it was found- there bad been no Cancellation. Respondent testified that the average commission per piano was $50. Appellant offered rio evidence tanking Ho' contradict this- -evidence. There is no evidence ini tibe record ithialt any sums of money, under the terms of the contract, Would have been expended, -other than wha,t . had already been incurred •and expended by. respondent, that would have cut down the amount: of tihe .commissions1 so. testified tio by respondent. The court only Eostfuctadl tih.e jury as -to the 'commissions or profits, and -s¡aád nothing in relation ro.''expenses. The expenses _ shown by the evidence- having been incurred and piaid -prior to this suit became immaterial so. f-ar as the c-ommis'sions were coniceme-d, -as under such circumstances respondent vVais entitled to the gross- commissions. If there were anv other expenses, the burden- was on appellant to show them, -and', none havEtog been shown, it must be presumed on appeal tihaJt tibere were ruóme other than! tihio&e testified to. by respondent. AH assignments off error have been, 'considered!.

Fiiidfcug' ruó. error in the record, the judgment and order appealed! from are afiirmed'.

WHITING, P. J.

(oo'ifcurring speidlailly). I am of the opinion thlat, in ki'slbrricting the jury upon the amount of offset to whii'ch the defendlant was entitled, which; offset wa!s based on the profits dlu'e diefendianit from shies by .plaintiff in territory covered 'by dlelfenidJanit’s c'onfcratt, the trial clohrt erred in not directing tire jury: That they must '.bake into aCCousmt the io per cent, of the safe price which, under the contract, wlas to go to plaintiff wlhleUe slates were made by a special salesman.; and that they must take into account the expenses of such satesman. But while it was error to give such instruction, without modification, 3ret it is not reversible arrioir, as plaintiff did' mot ask for any modification of instruction given, and it is clear from the whole record! that plaintiff tried this cause upon the basic proposition that defendant hiaicli no night of recovery -at all for profits upon sale's made by plaintiff.  