At the hearing in the superior court, the plaintiffs' contention was that they were entitled to certain commissions, known as contingent commissions and commissions on excess payrolls, under contracts made with the defendants in 1903 and 1906; that although the 1903 contract was cancelled by the defendants in September, 1906, and the plaintiffs had not strictly complied with the conditions of the contracts upon which contingent commissions were to become payable, nevertheless they had substantially complied with them, and the defendants by agreement and by their conduct had waived any right they might otherwise have had to decline to pay the commissions. The defendants denied the waiver, and it was upon this question that the hearing was had.
In the disposal of the case it was proper to take up the question of waiver first; for if the defendants' right to insist upon the conditions in question had not been waived, then a finding to that effect would put an end to the case and obviate the necessity for discovery, while to have required the defendants to make discovery in the first instance, and before the question of waiver was determined, might have resulted in doing them an injury. Wig. Disc. 20-30. The hearing, however, resulted in a decree that the defendants had waived their right to insist upon the conditions, and that they should discover what, if anything, was due the defendants as commissions for the years 1906 and 1907.
The defendants have argued the case as if they had taken an exception to the decree. In this they are in error. No exception was taken to the decree. The only exceptions taken were to the admission of evidence and to the denial of the defendants' motion to dismiss the bill for want of proof. The latter exception is limited in its scope and does not present questions which might have been raised by an exception to the decree. Had such an exception *Page 203 been taken, it would have been necessary to determine whether there was evidence to support the decree in its entirety; but as the case stands, if there was any evidence from which a waiver could have been found under either contract, the motion to dismiss was properly denied.
A condition in the contract of 1903 provided that in the event of the termination of the contract by cancellation or otherwise, commissions on "excess premiums ascertained thereafter" and "contingent commissions" would not be paid to the plaintiffs. Upon the question of waiver of this condition, it appeared from correspondence between the parties and other evidence that after the contract of 1903 was cancelled, and as a consideration for entering into the contract of 1906, the defendants agreed that the plaintiffs should have their contingent commissions for the year 1906 that were earned under the contract of 1903, and should be treated by the defendants with reference to the commissions on excess pay-rolls, so far as they could be, on the basis set forth in the printed form of contract. This evidence was sufficient to establish a waiver of this condition.
The condition as to prompt remittance of premiums, upon which the payment of contingent commissions was also predicated, could have been found to have been waived from the evidence disclosing the course of dealing between the parties. It appeared that during the period of the first contract remittances had been delayed to some extent beyond the time agreed upon, and that the defendants had paid the contingent commissions each year down to 1906 without objection. This evidence was clearly admissible for the purpose of proving a waiver of the condition under the contract of 1903. And if the legal effect of the contract of September 25, 1906, read in the light of the surrounding circumstances, was to detach territory from the plaintiffs' agency and reinstate the contract of 1903, then the above evidence would be competent, not only to establish a waiver down to September 25, 1906, but from that time on through the year 1907; but as the latter question is not presented by the exceptions, it is not decided.
Upon the question whether Levette was acting as the agent of the defendants in bringing about the contract of 1906 and adjusting the differences between the parties as to commissions under the contract of 1903, it was competent for the plaintiffs to show that after undertaking to do these things he procured the contract of 1906 from the defendants and presented it to the plaintiffs for their signatures, that the president of the company acknowledged that Levette was their agent, and later wrote the plaintiffs that the contract left by him with them was the company's contract.
The exception taken to the testimony given by one of the plaintiffs, *Page 204 to the effect that he had information leading him to believe that there were commissions due them on excess pay-rolls arising out of business done by them for the defendants under the contract of 1903, was waived; for after the exception was taken it was expressly agreed that the memorandum made by the witness, showing what his information was, the sources from which he obtained it, and all the correspondence in relation to it, should be put in evidence. Moreover, this evidence was entirely immaterial. It related to a question concerning which the plaintiffs had requested that the defendants be required to make discovery and had no bearing upon any issue then being heard before the court. It had nothing to do with the question of waiver and was in no sense prejudicial.
No exception was taken to the admission of the letter from Levette to the plaintiffs.
Exceptions overruled.
All concurred.