Upon reconsideration I feel impelled to the conclusion that the opinion heretofore rendered has not given force and effect to the terms of the contract entered into between the parties.
The form of this contract was evidently prepared by the Wayne Pump Company for its general use throughout the country with its several agents or salesmen. It has in it many stringent regulations as to the salesmen, and its evident purpose was to throw full protection around the company. Counsel for the company insist that this character of contract, however much it may lean to the company's benefit, is absolutely necessary for the proper conduct of the company's business handled through so many different agents.
However that may be, there is no pretense of any fraud or deception, and in entering into the contract the parties dealt at arm's length. The courts have no right to remake the contract for the parties.
The suit is upon the common count. Although the cause of action arises under special contract, yet when it is fully executed on the part of the plaintiff and nothing remains but to pay, suit may be brought on the common count. The test is, "Has the contract been fully performed as to the items sued for, and have the installments become due and payable?" Carrico Son v. J. E. Duval Printing Co., 219 Ala. 65, 121 So. 59, 61.
The contract is the evidence of the amount due as well as the due date. It is, in short, the law of the case.
The writer for consultation purposes, had written somewhat at length to demonstrate that under the terms of the contract indebtedness to amount here approved had not been established, and that the burden rested upon plaintiff to show a compliance with the various conditions therein set out. But as I stand alone in this disagreement, and for the sake of brevity, I have concluded to forego the discussion originally prepared and to rest content upon the statement that I am persuaded plaintiff has failed to meet that burden resting upon him.
But a still more serious difficulty stands in the way of plaintiff's recovery in any amount. The contract expressly provides there will be no payment of commissions until the salesman has fully and finally accounted for and paid and delivered to the company all money, records, property and things of value due from him, or to be delivered by him, to the company. In the letter of the company to the plaintiff, bearing date September 28, 1937, and dated from its Memphis, Tennessee, office, the defendant cancelled the contract, effective as of October 2, 1937, and asked for a return of all property of the Wayne Company in defendant's possession "express charges collect." On October 7, 1937, the company again wrote plaintiff from this office reminding him of the letter of September 28 and of *Page 190 the request that he return all the property to the company, and stating that, as usual, he had not carried out their instructions, which was the cause of the cancellation of his contract. A prompt compliance was again requested. This letter made particular reference to the equipment sold to one Ross of DeFuniak Springs, Florida. From the undisputed proof plaintiff had repossessed the pump and equipment which he had sold to Ross, being valued at something over $400, and had the same in his possession at the time these letters were received. But he declined to comply with these requests, and the opinion excuses his noncompliance upon the theory that the defendant had no right to require that the express charges be prepaid. Such a conclusion is based upon a letter by the defendant to the plaintiff, bearing date December 21, 1937, demanding return of the property "transportation charges prepaid."
In the beginning it is true that the plaintiff was under no obligation to prepay transportation charges. But he was under a definite obligation to deliver the property to the defendant express charges collect, which he could have done and which he was requested to do. Certainly, a mere request that transportation charges be prepaid after the two previous requests to return the property "express charges collect" does not suffice to discharge the plaintiff from his obligation to return the property in some manner before he could demand settlement and payment under the contract. Indeed, by his failure to return the property after two requests therefor, the plaintiff might well have been considered as having in law converted the property to his own use. The letter of December 21st was more than two months after the last request. Instead of returning the property, appellee, after a period of three years, attached the same and secured jurisdiction for the trial of the cause.
I am therefore persuaded that under the undisputed evidence plaintiff is not to be excused from this contractual obligation, which was a condition precedent to the recovery of any commissions whatsoever.
The foregoing was written in answer to the original opinion of Justice Brown. But the majority, upon consideration of the cause in consultation, have adopted an entirely different theory, one heretofore not advanced in argument or by the author of the original opinion. As to this different theory, I am wholly unable to agree to such construction of the contract. It would serve no good purpose to discuss the matter further.
All requests for return of this property were entirely ignored. After keeping the property for three years, plaintiff brings suit and has attachment issued against the very property which he had refused to return. To my mind it is plain enough no delivery under the terms of this contract can be worked out on these undisputed facts. Certainly the parties did not intend that this feature of the contract as to delivery could be complied with by an attachment of the property. The delivery was to be to this defendant and not to any court. But I forego further discussion.
Entertaining the view that plaintiff in this case has prevailed in defiance of the terms of the contract, I feel impelled to respectfully dissent.