Agency, Termination. Contract, What constitutes. Pleading, Civil, Declaration. By an instrument in writing, executed under seal by a lumber company and one B. named therein, the company appointed B. its "sales agent, for the sale of all the lumber that will or may be sawed from the timber now owned by the company on" a certain tract named, "the said B. agreeing on his part to sell all our lumber by the time it is in shipping condition at the market price." The instrument further provided that "the said B. shall receive a commission of five per cent for selling on the f.o.b. shipping point prices on all lumber sold by him and shipped by the company in compliance with the terms of this agreement, which appointment is made in accordance with the authority given the board of directors in article second of section third. . . . We, the company, to pay all necessary travelling expenses of the said B." The article of the by-laws referred to provided that "The board of directors shall have the power . . . to appoint and remove at pleasure all employees and agents of the corporation." The agent sued the company upon this instrument as a contract, alleging as a breach that the defendant "notified the plaintiff that it would not require his services as selling agent for said lumber" and refused "to allow him to carry out his part of said contract." On demurrer, it was held, that the declaration set forth no cause of action, the appointment of the plaintiff being revocable at the pleasure of the directors of the defendant, and the agreement contained in the instrument relating only to the nature of the plaintiff's agency and the compensation to be paid him while the agency was in force.
In an action of contract against a lumber company on an agreement in writing under which the plaintiff was appointed the selling agent of the defendant for a certain territory and afterwards was notified by the defendant that his services as selling agent no longer would be required, the declaration alleged "that before said denial of the existence of said contract and said notification by the defendant to the plaintiff that it would not require his services as said selling agent the plaintiff relying upon said contract consumed much time and went to great expense in arranging and negotiating with purchasers for the sale to them of said lumber when the same would be in shipping condition, and had rendered a great amount of service to the defendant for the purpose of carrying out said contract and had expended large sums of money in placing the defendant in a position to operate and saw said timber into lumber in order that the same would be in shipping condition." On demurrer, it was held, that the foregoing portion of the declaration contained no allegation that the plaintiff set on foot any negotiations which resulted in sales or that he incurred any expenses in negotiations so resulting.
LORING, J.
We are of opinion that this demurrer must be sustained.
The plaintiff's first contention is that in and by the writing declared on the defendant impliedly agreed that the plaintiff should have the right to sell all the lumber sawed by it on the tract of land owned by it, called the Tuckahoe plantation, mentioned in that writing.
In giving a construction to the writing here in question, the form into which it was put by the parties is of great if not vital importance.
It is in form an appointment or the recital of an appointment of the plaintiff as the defendant's agent for the sale of the defendant's lumber, followed by an agreement as to the compensation to be made for such sales (and ending with a reference to one of the by-laws of the defendant corporation) by which the plaintiff's appointment is in terms made revocable at the pleasure of the defendant's directors.
The statement in such an instrument that the plaintiff is the defendant's agent "for the sale of all the lumber that will or may be sawed" on the tract of land in question cannot be construed to be an implied agreement on the part of the defendant, which is broken by the defendant if the plaintiff's authority is revoked by the defendant's directors (in pursuance of the by-law referred to), before he has sold all the lumber in question. That statement must be construed to be what it purports to be, namely, a provision as to what the agency is so long as it continues in force. It probably was inserted, as suggested by the defendant's counsel, to make it plain that the plaintiff's agency extended to all kinds of lumber sawed from the plantation in question.
In our opinion, by the true construction of this contract the appointment of the plaintiff was revocable at the pleasure of the directors of the defendant corporation, and the agreement made was an agreement as to the nature of his agency and as to the compensation to be paid to him while the agency was in force.
The conclusion to which we have come is supported by Douglass v. Merchants Ins. Co. 118 N.Y. 484, cited by the plaintiff. We have examined all the other cases cited by him and find nothing in them to the contrary. Our conclusion is also supported by the construction given to the written agreements in question in the following cases: Harper v. Hassard, 113 Mass. 187; Coffin v. Landis, 46 Penn. St. 426; Orr v. Ward, 73 Ill. 318; Jacobs v. Warfield, 23 La. Ann. 395; Williamson v. Taylor, 5 Q.B. 175; Aspdin v. Austin, 5 Q.B. 671; Dunn v. Sayles, Dav. Mer. 579; Burton v. Great Northern Railway, 9 Exch. 507. See also in this connection Busell Trimmer Co. v. Coburn, 188 Mass. 254; Lees v. Whitcomb, 5 Bing. 34; Sykes v. Dixon, 9 Ad. El. 693; Chicago Great Eastern Railway v. Dane, 43 N.Y. 240; Martin v. New York Ins. Co. 148 N.Y. 117.
The plaintiff's second contention is that if that be the true construction of the writing declared on he is entitled to recover (1) for what he did before his appointment was revoked in setting on foot negotiations which resulted in sales, and (2) for expenses incurred by him in his agency.
The difficulty with this contention is that he has not alleged that he did set on foot any such negotiations or that he incurred any such expense. The breach alleged is "That before said denial of the existence of said contract and said notification by the defendant to the plaintiff that it would not require his services as said selling agent the plaintiff relying upon said contract consumed much time and went to great expense in arranging and negotiating with purchasers for the sale to them of said lumber when the same would be in shipping condition, and had rendered a great amount of service to the defendant for the purpose of carrying out said contract and had expended large sums of money in placing the defendant in a position to operate and saw said timber into lumber in order that the same would be in shipping condition."
The entry must be
Order overruling demurrer reversed; demurrer sustained.