Before KERNER and MINTON, Circuit Judges, and BRIGGLE, District Judge.
The plaintiff sued the defendant for commissions alleged to be due him for services rendered to the defendant as sales agent for the sale of the defendant's products, including multigraph and multilith machines and attachments, in a territory comprising the State of Alabama and some counties in northern Florida.
On March 25, 1941 a written contract was entered into to be effective as of March 6, 1941 and terminable at the will of either party. Section 8 of the contract is controlling and is set forth in the footnote.*fn1
By this section it was provided that if any machines or attachments were sold by an agent in another territory and shipped into the plaintiff's territory to be used in that territory, the plaintiff was to be paid 75% of the total commission although he did not make the sale. The plaintiff's share in the commission was so large because he had the duty of installing the machines, training the operators, and servicing the machines for a certain period of time.
In March and May 1942 the defendant through its agent in the Dayton, Ohio, territory obtained three different orders for machines and attachments from the Army Air Corps at Wright Field, Dayton. The Army, being unable for reasons of its own to designate the locations to which these machines and attachments were to be sent for installation, had them shipped to six depots maintained and operated by the Air Corps. From these depots, the Air Corps would order out the machines to such points as it might choose when, as, and if needed.
The defendant had no control over the equipment after it reached the depot.One of these depots was located in Mobile, Alabama, and some of the machines and attachments contained in the afore-mentioned three orders were shipped on Air Corps orders to this depot. The agent at Dayton received 25% of the commission for selling these machines and attachments. When the machines and attachments were shipped from the Mobile Depot to a point in the plaintiff's territory to be there installed, he filled out a form provided by the defendant and claimed his commission of 75% of the total commission. On such transactions he was paid commissions of $6,324.94.
Before the Army Air Corps adopted the policy of sending machines and attachments to depots for storage, the defendant sent to the plaintiff and its other sales agents a bulletin stating that such machinery and attachments ordered to Army depots would be considered in transit and no commission thereon would be paid agents such as the plaintiff until the equipment was shipped out of storage into their territory to be installed, which of course would entail the duty on the part of the plaintiff and others similarly situated to install the machinery, train the operators, and service the machines.
The plaintiff made no objection to this interpretation or modification of the contract but operated under it and received over six thousand dollars' commission in reliance thereon. Each month the defendant submitted to the plaintiff a statement of the debits and credits in his account, to which were attached invoices explanatory thereof. These statements were accepted without objection by the plaintiff.
The plaintiff was paid not only 75% of the total commission on all the machinery installed in his territory that had been shipped from the Mobile Depot, but he also received commission on a machine shipped into his territory from a depot in Middletown, Pennsylvania.
The contract between the parties was terminated in March 1943, and on April 8, 1943 the plaintiff commenced this action in which he contended that he was entitled not only to 75% of the commission for all machinery and attachments that came to the Mobile Depot and were thereafter installed in his territory, but also for all that were stored in this depot over ninety days. For this contention, reliance was placed upon that part of Section 8 of the contract which provides:
"In the event that new or used equipment is transferred from one territory to another within ninety (90) days from date of shipment by Sales Agent or Company, the commission on such equipment, including supplies specified on original order, shall be readjusted on a basis of 75% of total commission to Sales Agent in whose territory the equipment was transferred, * * *."
The court found that all the machines and attachments sent to the Mobile Depot under the three orders involved remained there over ninety days and that the plaintiff was entitled to recover 75% of the total commission on all such machines and attachments, and judgment was entered accordingly.
The defendant contends that the contract as drawn and modified, to which no objection was made by the plaintiff, should be construed to limit the compensation of the plaintiff to 75% of the total commission on the machines and attachments installed and used in the plaintiff's territory, whether shipped from the Mobile Depot or from some other depot, and that the words "use" and "to be used" contained in the contract and referring to machines and ...