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Metromarketing Services3/2/2000
This breach of contract cas e arises out of an oral agreement for payment of commissions on business referrals. At issue is the enforceability of the agreement under the "Sales Representatives" statute and the viability of defenses to the breach of contract claim based on the Texas statute of frauds and the common law doctrine of accord and satisfaction.
INTRODUCTION
Appellant, Metromarketing Services, Inc. ("MSI") brought a breach of contract action against appellee, HTT Headwear, Ltd. ("HTT"), seeking damages and an accounting for commissions allegedly due under an oral contract for sales referrals. HTT moved for summary judgment on the grounds that MSI's claim for commissions was barred under the "Sales Representatives" statute set forth in section 35.81, et seq. of the Texas Business and Commerce Code as well as the statute of frauds and the common law doctrine of accord and satisfaction. The trial court granted HTT's motion for summary judgment without specifying the grounds upon which the decision was based. MSI now presents six issues for our review, contending the trial court erred in granting summary judgment regardless of whether its decision was based on (1) the "Sales Representatives" statute, (2) the statute of frauds, or (3) accord and satisfaction. We find the trial court erred in granting summary judgment for HTT because the suit is not barred by either the "Sales Representatives" statute or the statute of frauds and a material question of fact exists as to MSI's accord and satisfaction defense. Accordingly, we reverse and remand.
FACTUAL BACKGROUND
HTT is a manufacturer of specialty headgear. In January 1994, HTT entered into an oral agreement to pay MSI commissions for business referrals. The parties disagree as to the exact terms of the agreement. MSI asserts that HTT agreed to pay a commission of seven percent (7%) of the gross sales from customers MSI referred to HTT for third party orders. HTT contends that it was to pay a seven percent (7%) commission on all orders submitted by MSI for customers billed directly by HTT.
MSI referred only one customer to HTT, E.J.R. Enterprises, Inc. ("EJR"). Beginning in the fall of 1994, EJR began placing large orders with HTT. In June 1995, MSI sent a letter to HTT requesting payment on twenty-three invoices totaling over $10,000 in commissions. Two months later, in September 1995, HTT tendered a check to MSI for approximately $2,400. HTT listed three invoice numbers and the amount paid on each invoice on the check stub. In addition, HTT included a handwritten notation on the check which read: " inal payment for commission for EJR less deductions." MSI endorsed the check with the notation, "Accepted as Partial Payment," and cashed it. At the time it sent this check to MSI, HTT considered the business relationship between the companies to be over. HTT then refused to pay MSI commissions on twenty-three or more other orders EJR had placed with HTT. MSI brought this suit against HTT for breach of the business referral agreement.
STANDARD OF REVIEW
We review summary judgments in accordance with the following rules:
(1) The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) Every reasonable inference must be indulged in favor of the non-movant and any doubts will be resolved in favor of the non-movant.
See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citin
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