This is a suit in contract. Plaintiffs, Mrs. Gladys Ann Billiot, together with her husband John Schrewe, Jr., appeal from the judgment of the trial court denying recovery for an amount allegedly owed by defendant for commissions on sales made by plaintiff.
Mrs. Gladys Ann Schrewe was employed by defendant, Scott Manufacturing Corporation, hereinafter most of the time referred to simply as Scott, as a representative for the sale of oil well tools, including centralizers, scratchers and stop collars manufactured by Scott. She was employed under a contract confirmed by letter dated December 19, 1958, signed by Jean Barth and E. R. Scott, president and vice-president respectively of Scott.
This letter is as follows:
The second alleged contract entered into between Scott, represented therein solely by Jean Barth, as president, and Mrs. Schrewe, was dated July 25, 1960. In the main, this contract provided for Mrs. Schrewe to be general sales promoter for Scott in Louisiana, Oklahoma and Texas and recognizes the previously existing contract with Scott on December 19, 1958.
The trial court, in written reasons for judgment, found:
The appellant contends the lower court erred in holding that a specific rate of commission was not set in the first contract and in finding that the acceptance of lesser commission amounted to an accord and satisfaction; and further, in finding that the second contract of July 25, 1960, was unenforceable.
The record clearly establishes that from time to time plaintiff and defendant discussed the amount of commissions to be paid as the sales were developed. Because of the competitive nature of the business, the cost of and the short supply of steel by reason of the steel strike, and the cost of labor, the commissions paid to Mrs. Schrewe were considerably less than contemplated by the December 19, 1958 agreement. Such action was anticipated, however, in this agreement by the provision that the "commission schedule is subject to renegotiation should material and labor costs increase, and the price conditions on the market require any reasonable adjustment."
The record amply demonstrates the fact that discussion did take place between Mr. Seward, vice-president and Mrs. Schrewe in the adjustment of commissions. She contended, on the one hand, for a larger sum and Scott offered a lesser amount. The exhibits filed in the record show that she did, in fact, accept payment of commissions in lesser amounts than those provided in the contract.
To support the doctrine of accord and satisfaction which defendant-appellee contends for herein, it is necessary
Passing now to consideration of the July 25, 1960 contract, we find, as did the trial court, that the president Jean Barth, had no authority of Scott to enter into such an agreement. It was not known by either the vice-president, Mr. Seward, or Mrs. Kerkhoff, the secretary of Scott, that such an agreement had been entered into until the latter part of November, 1960. Barth had no authority from the Board of Directors of Scott to make such an agreement with Mrs. Schrewe. There was no resolution of the Board of Directors. Appellant testified that she met with Barth in a Chicago hotel where an agreement was reached as to the terms of the contract. While there is some question of whether the agreement was actually signed in the hotel in Chicago or a motel in New Orleans, it was an act ultra vires for Barth to bind Scott to appellant under such an agreement. It appears that the business, at this time, was under the management and direction of Mr. Seward and Mrs. Kerkhoff as Mr. Barth was absent from the country, all to the knowledge of Mrs. Schrewe.
The authority of corporate officers at the time of the execution of this agreement of July 25, 1960 was controlled by the provisions of LSA-R.S. 12:35(C) which provides:
The by-laws of defendant required the signatures of two officers of the corporation for such a contract.
Appellant has the burden of proving that the person with whom she dealt had authority to bind the defendant. The applicable jurisprudence is well set forth in the recent pronouncement of this court in North American Sales Alliance, Inc. v. Carrtone Laboratories, Inc., La. App., 214 So.2d 167 (1968):
Furthermore, we find, as did the trial court, that Mrs. Schrewe failed to prove that the corporation ratified the unauthorized action of its officer.
We find that Scott has paid to appellant all that was due her under the effective agreement of December 19, 1958.
The judgment of the trial court is affirmed at appellant's cost.