
    MURRAY CO. v. HARRILL et al.
    No. 429.
    Circuit Court of Appeals, Tenth Circuit.
    July 21, 1931.
    Appeal from the District Court of the United States for the Eastern District of Oklahoma; Robert L. Williams, Judge.
    Action by the Murray Company against T. C. Harrill and another. Judgment for defendants, and plaintiff appeals.
    S. P. Freeling of Oklahoma City, Okl. (Freeling &Box, of Oklahoma City, OH., on the brief), for appellant.
    Thos. H. Owen, of Oklahoma City, Okl., and John C. Graves, of Wagoner, Okl., for appellees.
    Before LEWIS and COTTERAL, Cir-euit Judges, and POLLOCK, District Judge,
   COTTERAL Circuit Judge.

The Murray Company brought this action against T. C. Harrill and J. A. Harris to recover upon two notes and an account, on which there was due $12,250.85, with interest and attorney’s fees. The defendants answered, admitting their liability, but pleaded set-offs of approximately $21,450, as commissions earned by them on sales of fifteen cotton gins for plaintiff, pursuant to a written contract; and they prayed a recovery of the excess of their demands. The plaintiff replied, admitting the contract, but denying ¡that defendants earned any commission ex-eept of 5 per cent, upon a sale to J. M. Hill, amounting to $1,350. The cause was tried to a jury, which returned a verdict in favor of the defendants for $108. Judgment was rendered on the verdict; and the plaintiff , appeals.

The contract set out in the answer consisted of a letter of the company, accepted by the defendants. It provides in substance: The company agreed that defendants might sell its products in Oklahoma east of the Santa Fe Railroad for a commission of 10 per een^ and a like discount on their own purchases of gin machinery and steam power, and 5 per cent, on the sale of motors, The company had an agreement with John A. Simpson, of the Farmers’ Educational and Co-Operative Union, to use his influence in promoting sales to members of the union and allied organizations. Where he had begun negotiations, the defendants were not to interfere, but would when called' upon co-ate in seeurj a sale for one_half tlle aW eommission> w. 0. Cauthon, a salesman of was to assist t]lem in any deal initiated by ^ but wbere be should initiate it they were to have no commission. Their expense of travel was to be paid by the company. The contract was subject to cancellation by either of the parties 0n 15 days’ written notice.

The defendants also allege in their answer what appears to be their views of the contract or modifications thereof to this effect: It was agreed and understood that their sfrvices c°fist of soliciting pur?tasers of Plamtlff s 8™ machinery, bnngmg'them and salesmen of the company together, assisting purchasers in securing gin permtts from the corporation commission of oHahoma by proof of their qualifications and £be necessity of the gins. They- faithfully and diligently rendered these services with the knowledge and consent of the company, that it accepted the services, and by their co-operation with the salesmen the gins were «old “d tlle commissions were thereby earned-

The defendants had the burden of proof, Their evidence was largely a departure from the contract terms. Its trend, instead of being adduced to show actual sales of gins, pursuant to the contract, showed oral negotiations and understandings, correspondenee with purchasers and the company, services rendered in aiding customers to obtain gin permits from the corporation eommission, and various conversations and acts relative to sales. In two instances, sales were claimed to patrons west of the railroad, with approval of the company.

There were objections at the outset, but they were soon abandoned. And both parties appear to have tried the ease as an inquiry into the part defendants had in the various sales made and the services they rendered, without due regard to the facts essential to the commissions under the written contract. Some of the alleged sales were not made. There were two concessions to defendants by the plaintiff, one in the reply of a sale to Hill, and another at the trial of a sale to Babson on which commissions were due defendants, aggregating $1,567.-89.

The court submitted, the issues to the jury mainly upon an instruction that if the defendants found the customers and brought the parties into contact, the commissions should be allowed. The jury was also instructed to consider oral communications between the parties. Plaintiff’s counsel appear to have acquiesced in these instructions. y?e do not review them or consider whether in most instances they were justified by sufficient evidence, for want of proper exceptions. The single assignment we .may consider arises upon the exception saved to the refusal by the court of a request tendered by plaintiff’s counseLat the close of the evidence as follows: “The jury are instructed that there is no evidence that the defendants made sales or were mstrumental m making sales to Ray Williams of Avant, to E. O. White of Bokchito, to Joe Abrham H. L. Minnick of Coyle, to J. J. Ryals of Hastings, or to Croisant & Son of Muskogee, and you cannot allow the defendants credits for commissions on said sales.”

While the request was refused, the court later took from the jury the claims to commissions on the sales to Williams and Abraham, amounting to $835. - The four other claims embraced ’in the request remain for consideration, on which commissions are claimed of $4,728.17.

• mt, . There was evidence to show some efforts by the defendants to induce the sales to White, Minniek, and Croisant & Son. Simpson promoted the sales- to White and Min-nick, but we find no evidence in the record that those sales were initiated by the defendants and that they were entitled to commissions under the contract. ^ And both those parties obtained their permits with the aid of Simpson. There was an absence of evidence to show the sale to Croisant & Son was initiated by the defendants. They obtained their permit with-the aid of their own at-tomey. Besides, the testimony is undenied that they refused to buy a gin if the defendants had anything to do with it. There was testimony that plaintiff’s sales manager orally agreed to allow defendants a commission on a sale to Ryals, located west of the railroad, in consideration of their assistance, but assuming the validity of the oral agreement there was no evidence that the as-sistanee was rendered,

It is obvious that there was no sufficient evidence on which to predicate a verdict which found commissions were earned by the defendants on these four sales.

The jury should not have been allowed to guess whether these commissions were earned. A scintilla or modicum of evidenee was insufficient to sustain them. A verdict should be directed when the evidence is undisputed, or when it is of such conclugiye character that a verdict to the contrary should be set aside, in the exercise of sound judicial discretion. Small Co. v. Lamborn, 267 U. S. 248, 45 S. Ct. 300, 69 L. Ed. 597; Slocum v. N. Y. Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879; Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720.

Witllout considering the four claims to cominmissions, the jury might have returned a verdict for the plaintiff. It is imposible to determine that some or all of them were not credited the defendants. For the error committed in refusing plaintiff's request excluding them, the judgment is reversed, with direetion to grant a new trial of the cause.

Reversed.  