Annotate this Case

169 S.E.2d 243 (1969)

5 N.C. App. 713

Mrs. Robert H. PEASELEY, Executrix of the Will of Robert H. Peaseley, Deceased v. VIRGINIA IRON, COAL AND COKE COMPANY, a Corporation.

No. 6826SC276.

Court of Appeals of North Carolina.

August 27, 1969.

Certiorari Denied October 16, 1969.

*247 Blakeney, Alexander & Machen, by Whiteford S. Blakeney, Charlotte, for plaintiff appellant.

Helms, Mulliss & Johnston, by Fred B. Helms, and E. Osborne Ayscue, Jr., Charlotte, for defendant appellee.


Plaintiff appellant's assignments of error 1 through 19 relate to the trial court's rulings sustaining defendant's objections to certain questions asked of plaintiff's witnesses. The record does not disclose what the excluded answers would have been and we are therefore unable to determine whether appellant was in anywise prejudiced by the trial court's rulings. Ordinarily an exception to the exclusion of evidence will not be sustained on appeal when it is not made to appear what the excluded evidence would have been. Rural Plumbing and Heating Co. v. H. C. Jones Construction Co., 268 N.C. 23, 149 S.E.2d 625; 1 Strong, N. C. Index 2d, Appeal and Error, § 30, p. 165; Stansbury, N. C. Evidence 2d, § 29. In our view of this case, however, the trial court's rulings on evidence are immaterial.

Appellant's assignments of error 20 and 21 are directed to the judgment of nonsuit. In entry of this judgment there was error.

Defendant has never questioned its obligation to pay Peaseley commissions on coal sold and shipped by it to Mill Power prior to Peaseley's death. This coal was sold and shipped under the written contract entered into between defendant and Mill Power on 19 June 1963 (hereinafter referred to as the "coal contract"). Defendant does contend, however, that it is not obligated to pay commissions to Peaseley's estate on coal shipped by it after the date of Peaseley's death, even though such coal was sold by defendant to Mill Power under the very same coal contract as covered the coal shipped prior to his death. Defendant's contention is based on the theory that its contract with Peaseley, which was embodied in the letter agreement dated 30 August 1960 (hereinafter referred to as the "commission contract"), called for performance of personal services by him; that his estate, not being able to perform in exactly the same manner and with the same personality as did he, the contract necessarily terminated with his death; and that therefore his estate is not entitled to commissions on coal shipped by defendant to Mill Power after the date of his death.

Without question many contracts calling for services of a salesman are made on the basis of the particular salesman's peculiar attributes of fitness, personality, experience, contacts, industry and ability. Obviously all of such qualities and attributes are highly personal to the particular salesman involved. For this reason courts have properly held certain of such contracts not assignable by the salesman and not to survive his death. Appellee has cited a number of cases from other jurisdictions so holding, among them: Howe Sewing Machine Co. v. Rosensteel, 3 Cir., 24 Fed. 583; Smith v. Estate of Preston, 170 Ill. 179, 48 N.E. 688; Kowall v. Sportswear By Revere, Inc., 351 Mass. 541, 222 N.E.2d 778; and Smith v. Zuckman, 203 Minn. 535, 282 *248 N.W. 269. However, these cases are not, in our view, apposite to the present appeal.

Whether the commission contract between defendant and Peaseley in the present case was such a "personal service contract" as to be automatically terminated by Peaseley's death would, undoubtedly, be the issue if plaintiff's cause of action were based on the theory that she has the right to negotiate future sales contracts between defendant and Mill Power. This, however, she is not presently attempting to do. In the present action she has alleged that Peaseley, through diligent efforts extending over a substantial period of years, was instrumental in developing a business relationship between defendant and Mill Power involving the sale of coal, that this relationship became embodied in the written coal contract executed 19 June 1963, that coal has continued to be shipped under this contract since Peaseley's death, and that defendant has refused to pay any commission thereon. She has offered evidence in support of these allegations. In the present case, therefore, plaintiff's cause of action is to recover commissions on coal which was sold prior to Peaseley's death and as a result of his efforts. Certainly this coal was sold in the sense that the sales contract under which it moved was fully negotiated, reduced in detail to writing, and was signed by the contracting parties prior to Peaseley's death. The contract was for a minimum term of three years, and the parties contemplated it might last much longer. It may be assumed that both the buyer and seller contemplated that much of the coal sold under the contract was to be mined, processed, and shipped by the defendant subsequent to the date the contract was executed. That the coal covered by the contract may have been mined, processed and shipped before or after the date the contract was executed, or before or after the date of Peaseley's death, does not, in our view, relieve defendant of the obligation to pay commissions on the coal so sold and shipped. A sales agent whose efforts are the procuring cause of a sale made during the period the agency relationship existed is entitled to commission thereon even though actual delivery of the article sold be made after termination of the agency, at lease absent a clear understanding to the contrary; See: Richer v. Khoury Bros. Inc., 7 Cir., 341 F.2d 34; Heuvelman v. Triplett Electrical Instrument Co., 23 Ill. App.2d 231, 161 N.E.2d 875; Reed v. Kurdziel, 352 Mich. 287, 89 N.W.2d 479; Leach Corporation v. Joseph W. Turner, (Okla.) 390 P.2d 515.

In the present case plaintiff has alleged and offered evidence tending to prove that coal was shipped by defendant after Peaseley's death under the very same coal contract which was the product of his skill and efforts as a salesman. In the absence of any evidence of an understanding that defendant was to be relieved of commissions thereon, plaintiff is entitled to recover. In allowing the motion of nonsuit the trial court was in error and the judgment is


MALLARD, C. J., and BROCK, J., concur.