Ward v Spivack Ltd

• Jurisdiction: Ireland
• Judgment Date: 01 January 1957
• Date: 01 January 1957
• Court: Supreme Court

Ward v. Spivack Ltd

DANIEL WARD

Plaintiff

and

SPIVACK LIMITED, Defendants. NOEL JAMES FAGAN, Plaintiff,v. SPIVACK LIMITED

Defendants.

Supreme Court.

Contract - Agent - Commission - Contract for indefinite period - Determination of contract - Right to commission after agency determined.

W. and F. were appointed sole agents within a defined area for the sales, on a commission basis, of the products of the defendant Company. By the terms of their respective contracts, which were not in writing, each was to be paid commission on all orders, with certain specified exceptions, received by the Company from customers in their respective areas. No provision was made for payment of commission or otherwise on the termination of the agencies. The agencies having been determined by the Company, the plaintiffs each sought (inter alia) a declaration that there should be implied in the contracts a term that commission was to continue to be paid, notwithstanding the termination of the contracts, on all orders from customers in their respective areas who did business with the Company during the period of the agencies.

Held by Davitt P., that a term should be implied in the contracts that commission was to continue to be paid on all orders from customers introduced by W. and F.

On appeal by the Company to the Supreme Court it was

Held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore, O'Daly and Maguire JJ.) allowing the appeal, that to read such a term into the contract would not be to make clear the intention of the parties, unexpressed at the time of entering into the contract, but would be to make a new contract for the parties.

Witness Action.

The plaintiff, Daniel Ward, in partnership with one, P. J. Roche, under the name of Ward and Roche, and carrying on business as Manufacturers' Agents were appointed agents in their respective areas of the defendant Company in the year, 1948, for the sale of the Company's products and were to be paid as remuneration commission at the rate of £7 10s. 0d. per cent upon orders received by them for the Company's goods. The partnership was dissolved in the month of February, 1950, and the plaintiff, Daniel Ward, was then appointed agent at the same rate of commission, which was reduced to 6 per cent in or about the month of June, 1950. There was no written contract and no stipulation as to the termination of the agency or commission. The Company determined the agency on or about the 29th of January, 1954, and since that date had refused to pay to this plaintiff commission on goods sold to customers who were introduced or obtained by the plaintiff, Ward, before the said 29th January, 1954. Daniel Ward brought an action against the Company claiming, inter alia,a declaration that he was entitled to commission upon all goods sold to customers in his area, the County of Dublin (including Dublin City), by the Company.

The plaintiff, Noel James Fagan, was appointed agent for the defendant Company in or about the month of June, 1950. On his appointment it was agreed that he should act as sole agent for the sale of the defendant Company's products in the Republic of Ireland (excluding the City and County of Dublin) and that he should be paid as remuneration commission at the rate of 6 per cent on orders booked from his territory. There was no written agreement between Fagan and the Company and no provision was made in respect of the payment of commission on termination of the appointment. The appointment was terminated by the Company in June, 1951, and no commission had been paid to the plaintiff, Fagan, since that date. Fagan brought an action against the defendant Company claiming, inter alia, a declaration that he was entitled to commission at 6 per cent on all orders to be received by the defendant Company from customers in Ireland exclusive of the City and County of Dublin who were introduced or obtained by him or who became customers during the continuance of his agency.

Davitt P. :—

I must confess I have no great affection for cases of this type. They are often difficult and the evidence frequently vague and conflicting with the witnesses on either side testifying to conversations which took place years ago without any contemporary record of what was said.

The first thing to decide is what was the nature of the contract in each case. Was it a contract of employment? Did it create the relationship of master and servant or did the parties contract as two independent principals? One of the marks of the relationship of master and servant is the existence of control by the master over the servant as regards the doing of his work, whereas if one of the parties who does work for the other is free to do it how, when, and in what way he likes he is hardly a servant.

In this case the plaintiffs both maintain that they were agents and not employees. Mr. Spivack maintained that they were his employees. The facts seem to be that both Fagan and Ward were not engaged whole-time in work for Spivack; each had to buy a car out of his own resources for the purpose of his work; each...