The opinion of the court was delivered by: PROCTOR
Petitioner files this action pursuant to the provisions of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 308(e).
By his complaint, petitioner seeks a judgment requiring the respondent corporation to reinstate him to his former position, in conformity with the terms and conditions of the contracts between petitioner and respondent, and further that the respondent be required to pay commissions, which petitioner alleges have accrued to him from the date of his requested reinstatement, and an accounting for all commissions due petitioner during the aforesaid period.
The case was advanced for hearing, and the court after considering the pleadings, stipulations of counsel, exhibits and testimony makes the following findings of fact.
1. Petitioner, Harry L. Rosenbaum, is a citizen of the United States and a resident of the city of Roanoke, Virginia. On July 20, 1942, petitioner entered the Chemical Warfare Service, U.S. Army, and was discharged therefrom on December 20, 1945. On December 31, 1945, petitioner addressed a letter to respondent requesting reinstatement, which request was denied by respondent.
2. Respondent, Ceco Steel Products Corporation, was incorporated under the laws of the State of Nebraska on July 27, 1914, under the name Concrete Engineering Company. On June 26, 1937, respondent's name was changed to Ceco Steel Products Corporation.
4. On March 27, 1936, petitioner, under the name and style of Roanoke Engineering Sales Company,and respondent entered into a written contract, under the terms of which petitioner was appointed by respondent to act as the latter's exclusive representative to solicit orders for certain steel products of respondent, consisting principally of round bar and angle joists, through agents which petitioner should appoint, such appointment being subject to the approval of respondent. The territory in which petitioner was to operate was definitely fixed by the terms of the contract in question and covered all of Virginia, except the counties of Frederick, Clark, Loudon, Fairfax, Prince William, Fauquier, Warren, Shenandoah, Page, Madison, Rappahannock, Culpeper and Stafford; the States of North Carolina and South Carolina.
The foregoing contract was executed by the parties after negotiations during which petitioner suggested changes in the form and content thereof, including a requirement by petitioner that if respondent cancelled the agreement, that all agencies created for the respondent should be cancelled at the same time, and the respondent would not renew any agreement with said agents for a period of not less than nine months from date of cancellation. The court finds that in negotiating and executing this contract, the parties dealt at arm's length.
5. On September 24, 1938, petitioner under the name and style of 'Roanoke Engineering Sales Company by H. L. Rosenbaum' and respondent entered into another written contract, in the form of a letter, under the terms of which petitioner was appointed exclusive representative for respondent to solicit orders for certain other products of respondent, consisting principally of steel windows and doors, through agents appointed by petitioner to act directly for respondent, subject to the latter's approval and acceptance of such agents and the orders sold by them. The territory covered by said contract embraced all of Virginia except the counties of Frederick, Clark, Loudon, Fairfax, Prince William, Fauquier, Warren, Shenandoah, Page, Madison, Rappahannock and Culpeper; also that portion of southern West Virginia lying south of the C. & O. Railroad except the counties of Putnam, Cabell, Lincoln and Wayne; also that portion of the state of Tennessee east of and including the following counties: Hamilton, Bledsoe, Cumberland, Fentress and Pickett. The court finds that the states of North and South Carolina were also included in the territory covered by this contract, but the same were omitted from its provisions through inadvertence when the contract was originally prepared, but the petitioner noticed the omission on or about October 31, 1938, and called the same to respondent's attention and the latter thereupon agreed to the inclusion of said two states in addition to the territory hereinbefore specified.
Prior to entering into said contract, the petitioner and respondent had numerous conferences, and a great deal of correspondence was exchanged by the parties as to its terms, particularly as to the territory to be covered, and the method and amount of compensation to be paid thereunder.
During the initial states of the negotiations, there was prepared in petitioner's office, on his typewriter, on a letterhead of the 'Roanoke Engineering Sales Company', a memorandum stating that it was the intent of the parties that the relationship between petitioner and respondent was to be, in effect, that of an independent contractor rather than an employee of respondent. This memorandum was prepared by petitioner in collaboration with a representative of respondent, who had been sent to Roanoke to discuss terms with petitioner.
While the contract in the form of a letter is dated September 8, 1938, and purports to have been accepted by petitioner on September 24, 1938, the court finds that the parties did not agree as to all of its terms until the latter part of October 1938, and that from August 1938 to and including October 1938, and that from August 1938 to and including October 1938, the parties were negotiating the terms and conditions of said contract, during which the parties dealt at arm's length.
During such negotiations, the petitioner requested that the respondent furnish stationery showing the name of petitioner as 'District Manager' of respondent, but the latter refused to do so and furnished instead stationery bearing petitioner's name and address in the top center thereof, and in the upper left hand corner, 'Sales representative Ceco Steel Products Corporation', and in the upper right hand corner, 'Steel windows, Metal Frames, Screens, Metal Weatherstrips, Standard Joists and Longspan Joists.'
6. On May 29, 1939, respondent suggested the elimination of West Virginia and Tennessee from the petitioner's contract, but petitioner refused to eliminate said ...