ANDERSON, Presiding Judge.
This is a suit by an automobile salesman, Robert A. Nieberding, against defendant, for commissions alleged to have been earned by him in procuring orders for the sale of automobiles while employed by defendant. The amount claimed in the petition as due plaintiff was the sum of $7,555.09. The answer admitted that plaintiff was entitled to the sum of $960.79, and said amount was tendered to plaintiff by said answer and deposited in the registry of the court for the benefit of plaintiff, together with the costs that had accrued in said cause. The case was thereafter referred to a referee to hear evidence and make findings of fact and conclusions of law based thereon. The referee in his report recommended that judgment be entered against the defendant and in favor of plaintiff in the sum of $1,347.26, together with costs. Exceptions to this report were filed by both parties and overruled by the court. The court then entered judgment on said report in favor of plaintiff and against defendant in the sum of $1,347.26, and for the costs of said action. From this judgment plaintiff has appealed.
The petition alleged that on or about January 1, 1946, plaintiff was employed by defendant as a salesman to sell and take orders for Lincoln, Mercury, and Ford passenger cars, and accessories pertaining thereto, and for Ford trucks; that defendant agreed to pay plaintiff $50 per week, plus a commission of 2% of the amount of each sale, upon the acceptance by defendant of the order of such sale; that plaintiff remained in defendant's employ until on or about August 18, 1946, at which time he was discharged by defendant; that during the period of his employment he took orders which were accepted by defendant in the total sum of $377,754.86; and that defendant was indebted to him in the sum of $7,555.09, which was 2% of the total orders taken by him. Judgment was prayed for said last named amount.
By its answer defendant alleged that the terms of the employment were "at a weekly compensation of $50, plus a commission or a bonus to be paid plaintiff in the sum of 2% on all sales and deliveries of automobiles made by defendant upon orders written by the plaintiff — said commission to be based upon the delivery price to the customer less all State and Federal taxes, handling and conditioning for delivery costs, transportation and freight costs, and amount of allowance on trade-ins, said commission to be due and owing as of the time of delivery."
It was further alleged in defendant's answer that up to September 20, 1946, defendant had paid all commissions to plaintiff due pursuant to the contract, and that between that date and November 1, 1947, "the defendant has sold and delivered additional automobiles upon orders written by the plaintiff, and that plaintiff's 2% commission due and owing thereon is in the sum of $960.79, which sum of $960.79 has been deposited by the defendant with the clerk of this Honorable Court for the use of the plaintiff, which sum defendant admits to be due, together with all costs that have accrued up to the time of making said deposit with the clerk, which sum so deposited is in full and complete payment of all sums now due and owing plaintiff by defendant."
The respondent, E. M. Stivers, Inc., is a corporation operating a Mercury and Lincoln automobile agency at 6320 Delmar Boulevard in St. Louis County. Its President is Mr. E. M. Stivers. Mr. Stivers is also the controlling stockholder of Stivers Auto Sales, Inc., a Ford agency company located in Ferguson, Missouri.
Appellant, Robert A. Nieberding, is a young man (twenty-six years of age at the time of the trial, with no experience as an automobile salesman prior to his employment by respondent. His previous employments were: apprentice machinist, tool and die maker, salesman of automotive ignition and service, and tool designer.
At the beginning of the late war the manufacture of automobiles was suspended and was not resumed until December, 1945. At that time there was a great demand for automobiles of all makes. Customers placed orders and accepted delivery of automobiles without regard to color, body style, or accessories. Many customers offered to accept automobiles without regard to make or price, specifying in their order blanks that they would accept a Ford, Mercury, or good used car.
On January 16, 1946, E. M. Stivers, acting for the respondent, hired Robert A. Nieberding, appellant, as a salesman. The contract was oral, and was without witnesses except for the parties mentioned. The terms of the agreement are in dispute.
Plaintiff testified that he stopped in to pay a social call on Mr. Stivers at his place of business on January 10, 1946, and that during the conversation he had with Mr. Stivers the latter asked him if he would like to sell automobiles. Plaintiff testified: "I told him that the idea appealed to me, however, I had never sold automobiles and wasn't too sure whether I could. So he explained to me * * * he had a fellow in mind * * * who was supposed to be a crackajack Lincoln salesman, and he said that he was going to contact this fellow and if he could get him he was going to give him the job. If not, he would call me and offer me the job. And he said this job was to be a Lincoln salesman * * * that was about all that was said about the offer of the job. There were a few things added about it being a very nice job, and that I should think about it. * * *"
Plaintiff further testified that he next heard from Mr. Stivers on January 16, 1946. Plaintiff stated: "I think it was late in the afternoon I received a telephone call * * * and he asked me if I was still interested in the offer that he had made, and I explained that I was, and he asked me to come over to his store. So I went over to his store that afternoon. * * * He said he was offering me the job as a Lincoln salesman and what did I think of it. I said I thought it sounded all right to me. * * * I think I again mentioned that I had never sold automobiles but I would like the opportunity. So Mr. Stivers explained to me he thought I would make a good Lincoln man. * * * He said that we had known each other for years. He thought I had the personality. He knew I had the schooling for it and that my acquaintances at the golf club * * * he thought they were the connections that would be interested in buying a Lincoln automobile rather than a Ford. In other words, they were the proper people that bought that type of automobile. * * * Then Mr. Stivers asked me what I had been getting in the past * * * and I explained that I had been getting around $300 a month as a tool engineer or tool designer * * *. He then added that this job would be a far better job than anything I had so far and that I would make more money on it, and it would be generally an all round better opportunity, and he explained that I would be making $500 or $600 a month right from the start, and that eventually, in the not too distant future, I would be making * * * much better salary than that, and he explained that Joe Brown, one of his salesmen, * * * was going to make $15,000 or $18,000 that year, and he explained that I would be making that in short order myself. * * * We discussed a few more things pertaining to the job. Explained that the automotive industry was just getting under way again since the end of the war and cars were starting to come through. * * * He explained that the demand for Lincolns wasn't as great as for Fords and Mercurys, and, in turn, the Ford Motor Company didn't turn out as many Lincolns as Fords and Mercurys; and he explained to me for the time being he would give me the opportunity to sell everything that he handled in his stores. * * * He mentioned that I could sell Lincolns, Mercurys, Fords, Ford trucks, accessories and service. In other words, anything pertaining to the business. He explained that this was to be a temporary situation until Lincolns started coming through, and I was to be an exclusive Lincoln salesman. * * * He explained to me he was going to pay me $50 a week, plus 2% commission on all orders that I took. * * * Well, he asked me how that appealed to me and I said I thought it sounded all right to me. * * * I repeated that I wasn't familiar with the automobile business and as far as remuneration or anything, I thought it was a pretty good deal. * * * Then he explained * * * what I was to have when I became a Lincoln salesman. I was to have a secretary and all sorts of things pertaining to the job. At present I was to have a desk on the floor, on the display floor, and that I was to greet people as they came in the door, introducing myself, and asking if I could be of assistance, and if they were looking for an automobile I was to explain the automobile in detail. That is, price and everything covering the particular car that they were interested in. I was to quote delivery and try to persuade them in placing an order for the same automobile. * * * I was told to get $100 deposit on any order placed for an automobile, regardless of what it was. * * * To start with, I was told to quote a delivery date, and that was changed on three different occasions. * * * The first delivery date was two to three months. * * * I was told to quote two to three months on any cars handled at the Delmar store, but * * * not to quote delivery as far as the Ferguson store was concerned. * * * I was told if anyone requested a Ford or Ford truck that I was to show them all literature covering a Ford or Ford truck, price and everything, with the exception of the delivery * * *. I was told that I would be permitted to sell used cars and accessories, and that I was to follow through on that with the shop foreman as far as preparation of the used car, and that I was to contact different individuals by phone or letter through literature that Mr. Stivers carried to try to drum up business. In other words, he suggested funeral directors and fleet owners, and acquaintances out at the golf club that I knew."
Stivers testified that his first conversation with plaintiff was on the 10th or 12th of January, 1946. He further testified: "Well, as I recall, the first conversation, after passing general remarks, Mr. Nieberding ventured some conversation about he and his wife both having been sorry several times for not having become employed by me back in 1943 * * *. After some discussion on that we discussed his leaving or becoming unemployed and whether or not he was still employed with the Medart Auto Electric Company. * * * Well, there was some discussion went on about why he wasn't working there any more, and then, as I recall, some discussion ensued about his wife being in pregnancy and he was out of a job and wondered if there might be a chance for him now to be considered as an employee of mine. * * * We discussed that at quite some length about whether or not he would fit into the automobile business in some category. * * * Well, I told him that I wasn't in any position to know whether he would fit in the automobile business or not, but I was willing to try it, and I did submit to him a proposition of a trial period. * * * I told Mr. Nieberding for a period of six months trial period I would pay him $50 a week to work on the floor. * * * I told him I would pay him $50 a week salary for writing orders, doing what he could do on the floor, and 2% on the sale and delivery of automobile parts or service business that he sold, and used cars."
Mr. Stivers further testified:
"Q. Did you tell him in that first conversation that you would pay him a 2% commission for the writing of orders? A. No.
"Q. What did you tell him his duties would be? A. His duties would be to conduct himself as an apprentice salesman, to meet people, answer what questions he had the ability to answer, and when he felt he didn't have the ability to answer the question, to get the information from either myself or Mr. Brown."
Mr. Stivers testified that his next conversation with Mr. Nieberding was on January 16, 1946, at which time he told plaintiff very specifically what the terms of the employment would be, which were: "Fifty dollars a week salary for writing of orders and other things that he might do on the floor, and 2% commission on the sale and delivery of new and used cars, service work that he solicited, and parts or accessory sales that he might sell. * * * He was very agreeable as I remember; started immediately."
Further testifying, Mr. Stivers stated:
"Q. Mr. Stivers, will you tell the referee whether or not you had a conversation with Mr. Nieberding concerning the method of computation of commissions? A. I did.
* * * * * *
"Q. And when was that conversation, Mr. Stivers? A. At the first interview * * *. I told Mr. Nieberding at the first conversation, explained the method of paying commissions and paying the $50 a week salary.
"Q. How were the commissions to be computed? A. On the basis of the retail price of the automobile, less Federal and State, all taxes, less the trade-in."
From plaintiff's testimony it appears that Mr. Stivers called Mr. Brown and introduced him to plaintiff, telling Mr. Brown that plaintiff was the new Lincoln salesman and, for the time being, was going to work on the floor with him, taking orders from customers; that Stivers also directed Mr. Brown to give plaintiff instructions as to how to fill orders and meet people; that Mr. Brown showed plaintiff the order blank used by the company and that plaintiff was given a price list showing factory price listings.
The evidence shows that various order blanks were used, but the typical from included the following language, with appropriate blanks to be filled in — make, model and color of automobile ordered; date of delivery; price; additional accessories requested; a statement that the order was not binding until accepted by an authorized representative of the dealer, and an appropriate space for the acceptance signature; and a statement on the reverse side that if a price change was effected, the order could be annulled at the buyer's option.
The contents of the order blanks, as filled in by plaintiff, varied extensively. Some of the orders contained a request in the alternative for either a Lincoln or Mercury automobile. Many of them did not specify model or color desired, and many of them made no reference to accessories desired. The price to be paid was not filled in on many of the orders, and some bore the notation: "Price to prevail at time of delivery." None of them contained an acceptance signature by an authorized representative of respondent.
Appellant was also instructed to secure a $100 deposit with each order. These deposits were then given to respondent's cashier who issued a receipt for the customer. All such deposits were deposited by respondent in a bank in a separate trust account for the customer, and not entered on the regular books and records of the company. It also appears from the evidence that, upon all orders taken, appellant, with respondent's consent, wrote the words: "Deposit to be refunded at buyer's option." Plaintiff testified that he was told he would have nothing to do with delivery of cars. He further testified that Mr. Brown explained the Ford policy with reference to preferences, such as customers who were Veterans or fleet owners; that he also explained that the company had just started taking orders a short time prior thereto and only had a few orders on file, so that they would be down to plaintiff's orders in a short time. Mr. Stivers testified that on the date plaintiff was employed, January 16, 1946, they had orders on file for 250 automobiles. Plaintiff testified that Mr. Brown explained he would receive a commission on the f. o. b. price, plus the price of the wheel rings, oil filter, and such accessories as radio, heater, seat covers, spare tires, etc.; that Mr. Brown never instructed him to deduct from the purchase price the value of a used car traded, but that his commission was based on the full price of the new car.
Plaintiff identified and introduced in evidence 239 orders taken by him aggregating sales in the sum of $384,892.84. He testified that none of these orders were ever turned back to him as rejected, and no deposit which he had taken was ever returned to him. According to defendant's evidence, eighteen deliveries had been made on orders taken by plaintiff while plaintiff was in defendant's employ; thirty-eight deliveries had been made subsequent thereto; and eleven orders were still pending at the time of the trial. The balance of the orders taken by plaintiff had been canceled by the customers and their deposits refunded.
Plaintiff received $50 per week while working for defendant, and, in addition, commissions in the total sum of $486.53. All these commissions (except a small commission on repair work) were paid to plaintiff at the end of each month following the sale and delivery of the new or used automobile under orders taken by him. All these commissions were computed upon the basis of 2% of the amount paid by the purchaser. Based on the thirty-eight deliveries of automobiles to customers who originally placed orders with defendant, commissions in the total sum of $1,211.91 were set up on the defendant's books and the books of the Stiver Auto Sales, Inc., as being due and owing to plaintiff.
According to plaintiff's testimony he complained because he was not paid on the basis of orders taken. He stated that at the end of the first month, when he did not receive the 2% commission on orders taken, he spoke to both Mr. Brown and Mr. Stivers about it; that Stivers told him he had earned the money and that it was there for him and he could have it any time, but plaintiff stated that it was not paid. He further testified that Stivers told him he would be taken care of as originally promised, and for that reason plaintiff stated he kept on working. He stated that on his second complaint Stivers told him that cars were not coming through as had been anticipated, but that the money was still there if he needed it, and that this was the same explanation he received each time he complained. He stated he was finally told he would be paid a commission on deliveries only.
Stivers testified that plaintiff did not receive a commission check at the end of January on the orders that he wrote in January, and that plaintiff did not ask him why he was not being paid such commissions. He also testified that he never had had a conversation with plaintiff about being paid a commission for writing orders, and that he never had paid any one a commission merely for writing orders. He further stated that plaintiff never asked for money in advance on commissions, but that plaintiff did say he was embarrassed for funds and was going to sell his automobile, at which time he (Mr Stivers) told plaintiff he would lend him money on the automobile or give him an emergency advance if he wanted it.
It also appears from the testimony of Stivers that defendant received only five automobiles from the factory in January, 1946; none in February; but in March and April he received fifteen to eighteen cars per month. On January 16, 1946, the date plaintiff was employed, defendant had a back log of about 250 orders on file. Stivers further testified that automobiles were not delivered in rotation or succession according to the orders as they were received, but according to business expediency, and that as President of the company he reserved the right to determine to whom deliveries and sales would be made. He further testified that no orders were canceled except at the request of the buyer. He also stated that none of the orders were accepted by defendant until deliveries were made.
The referee, after reviewing the evidence, found that the total amount of orders taken by plaintiff amounted to $388,828.64. He further found "that the contract between the plaintiff and defendant was an oral contract; that the only witnesses to said contract were plaintiff and the President of the defendant corporation; that the plaintiff alleges that he was to be paid his 2% commission upon the writing of orders and not upon the delivery of the automobiles and accessories covered by said orders, as contended by the defendant. This is a question of fact and not one of law. The plaintiff has the burden of proof to show that his commissions were due and payable upon the writing of orders and not upon the delivery of the same. From the evidence on the part of the plaintiff and defendant, and from the physical facts as testified to by the witnesses, your referee is of the opinion that the plaintiff has failed to sustain his position and the Referee therefore finds that the commissions were due to plaintiff only upon cars and accessories actually delivered by the defendant." The referee further found that there was due plaintiff the sum of $1,347.26, and recommended judgment in said amount, together with costs. This was in excess of the amount paid into court by defendant.
The case is here for decision in accordance with the provisions of Section 114(d) of the Code of Civil Procedure, Laws 1943, p. 388, Sec. 114(d), Mo.R.S.A. § 847.114(d), which provides that in cases tried upon the facts without a jury, "The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Said section has been held applicable to cases referred to and tried by a referee. Baerveldt Honig Construction Co. v. Dye Candy Company, Inc., 357 Mo. 1072, 212 S.W.2d 65.
Appellant contends that the referee and the trial court, in their interpretation of the contract, erred in finding that commissions were due only upon delivery of automobiles to purchasers upon orders taken by plaintiff. We cannot agree with this contention. The evidence was conflicting on this vital question. The testimony of plaintiff supports his contention that under the agreement commissions were earned when orders were taken. The effect of the testimony of Stivers was that plaintiff's commissions on a particular sale were not earned until completion of the transaction by delivery of the article sold. In our opinion, the defendant's evidence on this phase of the case is the more convincing, when considered in connection with all the other facts and circumstances in evidence.
Appellant relies upon Porter v. Fickenwirth, Mo.App., 217 S.W.2d 738; Wolff Shirt Co. v. Sacks, 184 Mo.App. 157, 168 S.W. 641; and Lewis v. Atlas Mutual Life Ins. Co., 61 Mo. 534. In none of these cases did the right to commission hinge upon the act of delivery.
It is further urged by appellant that there is actually no difference in legal effect between the version of the contract as testified to by him and the terms of the agreement as testified to by Stivers, because ability to deliver, and an agreement by defendant to deliver in due course, would be implied in either event. From this premise, it is then argued that since there was no stipulation in the agreement exempting defendant from paying commissions upon failure to make delivery by reason of his inability to do so, defendant's liability for payment of commissions would result from the acceptance of orders.
It is true that the law will read into the agreement an implied obligation by defendant to deliver automobiles on all orders taken by plaintiff, but such obligation must be held to refer to a delivery in accordance with the trade practice and as affected by well known conditions in the industry bearing on the ability to deliver.
In the case at bar, conditions in the automobile industry with respect to the manufacture and delivery of automobiles were far from normal — a fact well known. There had been a period of four years during which no automobiles had been manufactured. In fact, the manufacture of automobiles had been resumed about a month prior to the time plaintiff and defendant entered into the contract of employment. By reason of these conditions it was impossible for defendant to make immediate delivery on all orders taken; and it is reasonable to suppose it was for that reason that Stivers in his offer of employment, which, according to his evidence, plaintiff readily accepted, expressly made delivery a condition of payment of commissions.
If there was no definite agreement between the parties as to the time and conditions of payment of the commissions, there might be some merit to plaintiff's contention. However, we cannot ignore the fact that, by acceptance of Stiver's offer of employment, actual delivery was made a condition precedent to liability on the part of the defendant.
Finally, it is urged that appellant should recover commissions on all orders taken, because: (a) defendant did not prove that its failure to execute orders was in good faith and through no fault of its own; (b) that its failure to make deliveries was arbitrary and capricious; and (c) that defendant permitted cancellation of orders without notice to plaintiff, and without notice to him of the reasons for said cancellations.
There was no evidence that defendant had, in bad faith, refused to execute any of plaintiff's orders, or that it arbitrarily and capriciously refused to deliver automobiles to customers on orders procured by plaintiff. It further appears that all cancellations were made at the request of the customers pursuant to the provisions contained in the orders. Defendant was under no obligation to notify plaintiff of said cancellations, or to advise him of the reasons therefor.
Respondent asks that the judgment be modified to the extent of assessing the costs against appellant on the theory that if there is deducted from the judgment the sum of $215.88, being commissions due and owing from Stivers Auto Sales, Inc., which were assessed against respondent, the sum tendered in court would exceed the amount properly chargeable to respondent, and the trial court, by reason thereof, should have awarded costs in favor of respondent.
In respondent's exceptions to the referee's report, filed in the trial court, no suggestion was made that the referee included items in his finding not properly chargeable to respondent. In fact, the prayer of said pleading was that judgment be entered against respondent in the sum of $1,347.26 — the amount found by the referee as due and owing from respondent to appellant. The court then entered judgment against respondent for said amount, and costs. Respondent then filed a motion to amend the judgment by assessing the costs against appellant. This motion was overruled. No appeal was taken by respondent from this order, or from the judgment. Such being the case, it is precluded from seeking a reversal of the adverse portion of the judgment. In re North Missouri Trust Co., Mo.App., 39 S.W.2d 412; State ex rel. Ginger v. Palmer, Mo.Sup., 198 S.W.2d 10; In re Carlins Estate, 226 Mo.App. 622, 47 S.W.2d 213; Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557; Schee v. Schee, 319 Mo. 542, 4 S.W.2d 760; Haggard v. Haggard, Mo.Sup., 233 S.W. 18; Turner v. Hine, 297 Mo. 153, 248 S.W. 933.
We find no error in the record and, in our opinion, the judgment should be affirmed. It is so ordered.
HUGHES and McCULLEN, JJ., concur.