Sumner v. Reicheniker

The opinion of the court was delivered by

The defendant Reicheniker was the agent of plaintiff for the sale of sewing machinas, etc. The agency was terminated, and the agent sued for alleged balances due, and property withheld. Upon the trial, defendant offered testimony tending to show that he was entitled to commissions on the sales made by him, and that he had been a good, faithful and energetic agent. In rebuttal plaintiff offered testimony to prove that said agent improperly retained the *323moneys of plaintiff in his possession, and also that he had not acted as a faithful and energetic agent, which testimony was rejected on the objection of defendants. In this was error. An agent’s right to commissions is not absolute. It depends ■on the manner of performing his duties. It probably would not be forfeited by a simple lack of energy. But it might be by an improper retention of his principal’s funds, or by acts <of unfaithfulness to his trust. True, not every slight omission of duty will work a forfeiture; nor are we able to indicate beforehand, in this case, how grievous must have been the omission to deprive the agent of compensation. We cannot even conjecture whether any dereliction of duty can be shown. It is •enough to say that the plaintiff had a fight to show it if he •could, and that he sought to do so and was refused. The rule in reference to agents is well laid down in Story’s Agency, ■'§ 331: u In the next place the agent is entitled to his commissions only upon a due and faithful performance of all the ■duties of his agency in regard to his principal. * * * If, therefore, the agent does not perforin his appropriate duties, or if he is guilty of gross negligence, or gross misconduct, or gross unskillfulness in the business of his agency, he will not •only become liable to his principal for any damages which he may sustain thereby, but he will also forfeit all his commissions. Slight negligence or slight omissions of duty will not indeed ordinarily be visited with such serious consequences, although if any loss has occurred thereby to the principal it will be followed by a proportionate diminution of the commissions.” Varnum v. Gregory, 21 Iowa, 326; Sea v. Carpenter, 16 Ohio, 412. For this error the judgment of the district court must be reversed, and the case remanded for another trial-