Adickes v. Drewry, 171 N.C. 667 (1916)

May 31, 1916 · Supreme Court of North Carolina

171 N.C. 667

H. F. ADICKES v. JOHN C. DREWRY.

(Filed 31 May, 1916.)

1. Appeal and Error — Agreement—Facts Found by the Court — Evidence.

The facts found by the court, by agreement of the parties, and supported by the evidence, are conclusive on appeal.

2. Contracts — Insurance—Renewal Commissions — Accord and Satisfaction.

The soliciting agent brings his action against the general agent of a life insurance company to recover upon a personal parol contract, 1 per cent renewal commission upon premiums of insurance written by him, for the life of the general agent (or the period of his connection with the company) , in addition to what the latter was authorized to pay under his contract with the company. The court found the facts under an agreement between the parties, and his conclusions of law, based thereupon, as to certain modifications of several written contracts between the parties, and that the parol contract had been annulled by an accord and satisfaction, are sustained on appeal.

8. Contracts — "Written Letters — Statute of Frauds — Ambiguity—Parol Evidence.

A soliciting agent sued the general agent of a life insurance company upon a parol contract wherein, it was alleged, the general agent had agreed to allow him an extra commission of 1 per cent upon renewal premiums, for the life of the general agent (or the period of his connection with the company). A letter written by the defendant to the plaintiff, stating that he would allow 1 per cent commission, as stated in the contract, to continue as long as the policies remained in force and the writer continued with the company, and that he would not offer plaintiff further inducements than allowed him by his contract with the company, and it appears that the company did not permit him to pay the 1 per cent renewals claimed: Held, the letter is not such a writing as to exclude parol evidence of the alleged parol contract sued on, it being in no sense contractual in its terms, and, besides, too ambiguous to be complete in itself.

Civil actioN, tried before Webb, J., at January Term, 1915, of Buktcombe.

The action was instituted by plaintiff, who had been an agent of the New Jersey Mutual Life Insurance Company, against John C. Drewry, a general agent of the company, to recover fees and commissions to the amount, in the aggregate, of $1,416.20, alleged to be due from defendant to plaintiff by reason of a special contract between them, an- oral contract whereby, as plaintiff claimed, defendant personally was to pay plaintiff certain renewal commissions for and during the life of the defendant, etc.; this claim being in addition to and in excess of fees and commissions due according to the written contracts of the parties.

Defendant denied that he had made any binding agreement to pay the commissions, as claimed, but contended that his only obligation was in the written contracts made with the approval of the company, whereby plaintiff’s right to commissions on renewals was restricted to nine years, and that defendant had paid plaintiff any and all amounts that were due him on the contracts existent between them.

A jury trial was formally waived by the parties and the questions at issue were submitted to the court under agreement in part as follows:

“It is stipulated and agreed by the parties in the above entitled cause that a trial by jury of all questions or issues of fact is hereby waived with the assent of the court, and that the presiding judge shall try all issues or questions of fact arising in said cause, and that his findings thereon shall have the same force and effect as the verdict of a jury, and he shall find and report all conclusions of law applicable to his findings of fact therein, and the same shall be embodied in his judgment.”

That, pursuant to said agreement, his Honor heard the evidence and made disposition of the questions of law and fact involved in the controversy and embodied the same in his judgment, as follows:

This cause coming on to be heard at the January term of the Superior Court, and a jury trial being waived, and it being agreed, by consent of all parties hereto, that the court shall find the facts in the case as well as applying the law, and the cause being heard, the court finds the following facts:

1. That H. E. Adickes rendered the service alleged from April, 1901, to 1 January, 1907, but that said services were not rendered under, a quantum, meruit or oral agreement, but were rendered under a written agreement between John C. Drewry and H. F. Adickes, which was approved by the Mutual Benefit Life Insurance Company, the common employer for whom each worked.

2. That the written agreement dated 10 April, 1901, did not embrace the entire contract, but the terms of the supplemental agreement (which was redrawn two or three times), as appears from the evidence, were finally agreed upon between the parties and approved 26 May, 1902.

3. That there was a new contract drawn between the parties under date of 10 August, 1903, by which the drawing allowance to H. E. Adickes was increased from $100 to $125, and the additional 1 per cent on the nine renewal commissions allowed to H. F. Adickes; that this agreement was submitted to Col. Le-G-age Pratt, superintendent of agencies of the Mutual Benefit Life Insurance Company, and approved by him.

4. That a new contract was drawn and entered into between the parties, dated 1 July, 1905, whereby the drawing amount was increased from $125 to $150 and the additional 1 per cent allowed 10 August, 1903, was canceled, and the contract dated 10 April, 1901, was expressly canceled.

5. That H. E. Adickes terminated his agreement with John C. Drewry as of 1 January, 1907, and a full settlement was arranged between them by E. V. Viles.

6. Tbat tbe letter dated 25 March, 1903, was not a contract nor an affirmance of any previous oral contract, but, as tbe court construes it, was a letter written by J. C. Drewry to H. E. Adickes in explanation of tbe contract. It limits itself by tbe following language: “You understand, and I so stated to you, tbat I could not guarantee to you, or bold out to you any inducements in tbe way of renewals, wbieb are not guaranteed to me under my contract witb tbe company. I would not undertake to offer any inducements further than those which are given me under my own contract witb tbe company itself.” Tbe court finds tbat this letter was never submitted to or approved by tbe Mutual Benefit Life Insurance Company.

7. Tbat tbe contract of John 0. Drewry witb tbe Mutual Benefit Life Insurance Company limited bis renewals to nine renewal commissions, which were guaranteed to him.

8. Tbat tbe contract of J. 0. Drewry then provided for tbe company allowing a collecting fee of 4 per cent, which has since been reduced to 2 per cent, which was to defray tbe expenses of carrying on tbe State agency, and out of which be bad to pay postage and clerk hire in tbe State agency. Further, tbe contract provided tbat tbe collecting fee might be modified or terminated on tbe company giving thirty days notice.

9. Tbat H. E. Adickes rendered tbe services be did under distinct written agreements, and not under a quantum meruit or any oral agreement between H. E. Adickes and J. C. Drewry.

10. Tbat in May, 1911, more than three years after tbe contracts between tbe parties bad terminated, as shown by tbe receipt of 4 August, 1908, there were negotiations between H. E. Adickes and J. 0. Drewry at Raleigh, and by letters between them, in which Drewry called attention to tbe fact tbat Adickes’ renewal interest was then at its highest, and would begin to decrease very materially in tbe course of a year or two. In tbe letter of 29 June, 1911, Drewry used this language to Adickes: “While I think, as I stated to you, tbat your renewal interest will amount to $2,500 this year, it will not amount to so much tbe year following, because your renewal interest will begin to diminish very materially now in tbe course of a year or two. A part of your renewal business terminated last year, but tbat was only on tbe Virginia business and tbe small amount of business written in 1901, tbe first year we returned to North Carolina. After next year your renewal interest on all business written in 1902 will terminate and in tbe course of three or four years your renewal interest will be considerably less than now. Besides, we do not know what emergency may arise to terminate a large volume of the business; so for these reasons you will notice I have changed tbe wording of tbe notes you sent me.” Tbat in tbe letter of 29 June, 1911, was inclosed two promissory notes, one for $2,000, due January, 1912, and tbe other for $2,500, due 1 September, 1912, both of which H. E. Adickes accepted and discounted at the Wachovia Banking and Trust Company, which notes were paid by J. C. 'Drewry according to their tenor.

11. That H. E. Adickes did not assert any claim under the letter of 25 March, 1903, until after the receipt and discounting of the two notes of J. C. Drewry, of $2,000 and $2,500, each for a period of about eight years, and he did not offer to return the notes which he had received on the basis of that settlement.

12. That the rules of the Mutual Benefit Life Insurance Company, the common employer of J. C. Drewry and H. E. Adickes, provided that all agreements between agents respecting the company’s business should be submitted to and approved by the company before they should be binding.

The court has given this case very careful consideration, and it has been a rather perplexing case for the court to deal with, and the court is of the opinion that Mr. Adickes is and has been sincere in his contentions, but the court, from all the evidence in the case, and the exhibits filed, cannot bring its mind to the conclusion that Drewry entered into or intended to enter into an oral agreement with Mr. Adickes to give him 1 per cent on all renewals as long as claimed by Mr. Adickes; and hence the court finds as a fact that Mr. Adickes performed the services, which he did perform, under written contracts as heretofore referred to, and that no oral contract was entered into between Drewry and Adickes, as claimed by Adickes.

CONCiuSIONS OR LAW.

1. That the services rendered by H. E. Adickes were not under a quantum meruit, nor oral contract, but were under the written contract of 10 April, 1901, as modified by supplements thereto and new agreements in writing, such as were made in accordance with the rules of the company.

2. That the agreement of 10 August, 1903, allowing the additional 1 per cent on the nine renewals and increasing the drawing allowance from $100 to $125 per month, superseded the provision as to the compensation in the agreement of 10 April, 1901, and in supplement thereto, so far as they might conflict.

3. That the agreement dated 1 July, 1905, annulling the extra 1 per cent, and especially canceling the agreement dated 10 April, 1901, annulled all previous agreements and settled all differences between the parties, and was in accord and satisfaction of the same.

4. That the letter of 25 March, 1903, was an explanation of and dependent upon the agreement dated 10 April, 1901, which was approved 21 April, 1901, and tbe cancellation of tbe original agreement by tbe making of new contracts dated 10 August, 1903, and 1 July, 1905, wbicb canceled by name tbe contract of 10 April, 1901, canceled any supplement thereto, though tbe same might not be called by name.

It is therefore considered, adjudged, ordered, and decreed by tbe court that tbe plaintiff is not entitled to recover anything in this action, and tbe defendant’s motion to nonsuit, made at tbe close of all tbe evidence, is allowed, and this action is dismissed; and tbe defendant will recover of tbe plaintiffs tbe cost of this action to be taxed by tbe clerk.

James L. Webb, Judge Presiding.

To tbe foregoing judgment tbe plaintiff excepts and appeals to tbe Supreme Court. Notice of appeal waived. Appeal bond fixed at $50.

Webb, J.

Bourne, Parker & Morrison, T. P. Davidson, and R. B. Loughran for plaintiff.

A. B. Andrews, Martin, Rollins & Wright for defendant.

Hoke, J.

There is evidence to support bis Honor’s findings of fact, wbicb makes them as binding as a verdict of tbe jury thereon. Stokes v. Cogdell, 153 N. C., 181; Branton v. O’Briant, 93 N. C., 99. His conclusions of law are correctly made, and we see no reason for disturbing tbe judgment wbicb has been rendered in tbe case.

It is chiefly urged for error that defendant is estopped from resisting plaintiff’s claims for indefinite renewals by reason of a letter, dated 25 March, 1903, of defendant to plaintiff, introduced in evidence and appearing on page 45 of tbe record, as follows:

“In further explanation of our contract of 10 April, 1901, I wish to state that it is my purpose to allow your renewal interest of 1 per cent, as stated in tbe contract, to continue as long as tbe policies remain in force and I remain with tbe Mutual Benefit. Of course, you understand that at my death my contract with tbe company would terminate and my renewal interest would only continue for tbe period of years as stated in my contract with tbe company, and your interest in renewals would have to terminate necessarily, in tbe same manner and at tbe same time as my contract with tbe company. You understand, and I so stated to you, that I could not guarantee to you or bold out to you any inducements in tbe way of renewals wbicb are not guaranteed to me under my contract with tbe company. I would not undertake to offer any inducements further than those which are given me .under my contract with tbe company itself.” Tbe position being, as we understand it, that this letter contains written acknowledgment of plaintiff’s claim for indefinite renewals, and that it is not permissible for defendant to maintain tbe contrary by parol evidence. But we do not concur in tbis view. Even if tbe letter were in terms conclusive, it is not and does not purport to be tbe contract between tbe parties on wbicb plaintiff sues, and wbicb was entered into, if at all, two years before. It is only a statement of defendant’s then recollection of tbe contract; in writing, it is true, but in no sense contractual witbin tbe meaning of tbe principle wbicb forbids tbe introduction of parol evidence in contradiction of written agreements. But tbe letter itself is not conclusive in its terms, for, while in tbe first part of it there seems to be an admission of plaintiff’s claim for renewals to tbe death of defendant or while be remains with tbe company, there is tbe restriction that defendant could not guarantee to plaintiff or bold out to him any inducements in the way of renewals wbicb are not guaranteed to defendant under bis contract with tbe company; that defendant could not undertake to offer any inducements further than those given defendant under bis contract with tbe company itself, etc. It was proved that defendant’s commissions on renewals were limited to tbe nine years, so that, even if tbe letter was intended to be contractual in character, it is so far ambiguous that parol evidence would have to be resorted to in order to arrive at its true significance.

Having given tbe facts in evidence our most careful consideration, we are of opinion that tbe controversy has been properly disposed of on its merits and tbe judgment in defendant’s favor should be affirmed.

Affirmed.