Cummins v. Barkalow — 1 Abb. Ct. App. 479

Majority

p. 479

CUMMINS v. BARKALOW.

December, 1868.

Headnote

A dealer in arms agreed to pay an agent, for obtaining from the government an order for the purchase of arms, a share of the profit upon each delivery. Held, that subsequent modifications, by the government, of ' the terms of the order, did not amount to a new order, so as to release the obligation to pay further compensation for the agent’s services.^[2]

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Such a contract is not necessarily void as against public policy.^[2]

One to whom a contract for payment of money is assigned, in trust for one who had made advances to the assignor, may sue thereon, as trustee of an express trust, under section 113 of the Code.

p. 481

James S. L. Cummins, as trustee of. Annie Halderman, sued ■ "William Y. Barkalow, in the N. Y. superior court, upon an agreement made by defendant, to compensate John Halderman for obtaining an order or contract from the government for the supply of rifles.

W. Y. Barkalow, being desirous to sell arms to the United States government, employed John Halderman to present his proposal at Washington, upon an understanding that Halderman, if successful, was to have one-quarter of the net profits. Halderman obtained from the war department, an order dated November 2,1SG1, for 26,000 Enfield rifles. Barkalow thereupon gave him the following agreement:

“ New York, Nov. 12," 1861.

“ John Halderman has procured for me an order from the war department, dated Nov. 2,1861, for twenty-six thousand stand of arms.

“ I hereby agree to pay to John Halderman, or his assigns, upon each delivery to the government, one-fourth of the profits realized upon each delivery in cash. The expense of the agent going abroad, not to be counted as part of the cost of the arms. That is, John Halderman, or his assigns, are interested with me, to the amount of one-fourth in this matter. One-fourth being given to the capitalist who furnishes the money for that consideration, and one-half being the share of Kirkpatrick and myself. The net profits will be the difference between the costs, of the arms delivered to Government, and the price received for them.

“ W. Y. Babkalow.”

Barkalow then accepted the order, by a written communication to the authorities at Washington.

In consequence of the delays in the execution of this order, Barkalow subsequently employed one Kirkpatrick to obtain a

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new order, or an extension of the original order. The details of these transactions are stated in the opinion.

On the trial Barkalow and Kirkpatrick gave testimony to the effect that Halderman had treated the order as abandoned in consequence of the delays; and the principal question of fact contested on the trial was whether the renewal of the order was not, in effect, a new order, and Halderman therefore entitled to no share in the profits under it.

The right of plaintiff to sue on this contract was derived by an assignment to him, executed by Halderman, and expressed to be “ in trust for my wife, Annie Halderman, to reimburse her money due her for advances made me by Mrs; E. J; Reigars, and given to said Annie Halderman by Mrs. Reigars.”

Plaintiff recovered judgment.

The superior court, at general term, affirmed the judgment, holding that the invalidity of the contract as against public, policy, was not in issue; that the evidence sustained the findings ; that the original order- was fulfilled; and that any objection to plaintiff's capacity to sue was waived by not demurring.

Defendant appealed.

James T. Brady, for defendant, appellant.

William Allen Butler, for plaintiff, respondent.

This action was brought by the plaintiff as the the assignee of one Halderman, to recover one-fourth of certain profits realized by the defendant upon a contract or order made by the government of the United States, with him, for the delivery of Enfield rifles. It is not denied that Halderman obtained an order from the government for the purchase and delivery of rifles; but it is claimed that no rifles were ever delivered under said order, which was abrogated by the government ; that rifles were delivered under another and a new and different order, in which Halderman had no interest, and with which he had no connection.

The agreement between Halderman and the defendant shows, upon its face, that it was based upon the order made the by ordnance department, on November 2,1861, which was accepted

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by the defendant; and unless the riñes were delivered' under this order the plaintiff cannot recoven The special term found that the rifles were delivered under and in execution of said order, and the extension and modification of it made by the government, and this finding is abundantly supported by the evidence. It must be conclusive, unless it is entirely without evidence to sustain it. That such is not the case is apparent by a recurrence to the leading facts relating to the order in question.

It appears that the contract between Halderman and the defendant was entered into pn November 12, soon after the order was made, and the defendant immediately sent an agent to England to fill the order. The agent returned, being unable to forward the rifles, by reason of the queen’s proclamation prohibiting the shipment of arms; and the defendant made another application to the government, stating the facts, and that he had thus been prevented from making the delivery according to the terms of the order, and as the non-fulfillment of the order did not occur in consequence of any fault on his part, asking for a new order. No answer was made was to this application, but soon afterward another application was presented, asking for an extension of the time for delivering under the aforesaid order. The application stated that this was the only change desired, and was granted. After this, a general order was issued by the war department, suspending the execution of all contracts for arms, and a commission on ordnance and ordnance stores was appointed to make investigations in regard to them. The defendant applied to the commission to continue the order, and they reported in favor of receiving eight thousand rifles under the order, and that the defendant had notified the commission, in writing, of his acceptance of this as perfectly satisfactory. The eight thousand rifles were delivered afterward and accepted by the government.

It is very evident, from the facts stated, that the proceedings of the defendant were all predicated upon the original order, which was never at any time abrogated, and which was kept alive and continued in force until the rifles were actually delivered.

The delivery of the rifles was had by virtue of this -order

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alone, and all that transpired intermediate its date and its' final' consummation related to carrying into effect that order, and 'was not in the nature of a nerr and different order from the one obtained by the plaintiff’s assignor. The defense interposed, in my opinion, is not established by the proof, which, at most, shows only an extension or a modification of the contract, as to the time within which it was to be performed, and in no other material or essential part.

It is claimed by the defendant, upon his points, that, if the statements of Kirkpatrick, who was sworn and .testified as a -witness on the part of the defendant, and was a partner in the contract, were true, Halderman was merely employed to use his influence with the government; and that, if such was the case, the contract was against public policy, and void. It is, perhaps, a sufficient answer to this position to say, that the statements of Kirkpatrick, as a witness, are denied by Halderman, so that there would be a conflict upon this point, in the testimony, which the court alone could determine if deemed important, or if called upon to do so, and which has been disposed of by the findings in the case. It may also be remarked, that the contract was entered into with Halderman after he had procured the order and the services in obtaining it had been rendered, and that there is nothing to show any undue or improper influence exercised in procuring it, or any efforts made by him which were not entirely fair and honest. Hordoes his subsequent conduct indicate that he did anything more than to make a presentation of the facts, in obtaining an extension of the time and a modification of the terms, so as to enable the defendant to fulfill the contract.

The transaction appears to have been an open one, and the defendant paid Halderman five hundred dollars on the agreement, thus signifying that it was satisfactory and met his approval. In fact, the contract itself, on > its face, contained no such defect. It called for no illegal or improper action on the pare of Halderman; it demanded the use of no improper influence ; it was a simple promise, in consideration of services previously rendered by Halderman, which were entirely legitimate, to account for a certain share of the profits ultimately realized; it contained -within itself no illegal or corrupt element which

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stamped it as vicious and incapable of enforcement, and no proof was given to show that it was thus tainted before it was executed.

Independent of these views, which effectually dispose of this branch of the case, it may be added that no such defense was interposed in the answer, and no such question raised upon the trial. No motion was made for a nonsuit or request to dismiss the complaint upon any such ground. Nor is there any finding, or any excep tion taken, which presents the point. If the defendant had intended to raise any such question, he should, at least, have' requested the court below to have made a finding of fact, as to whether or not the services rendered consisted merely of the use of his influence with the government in securing the contract, and whether they were of an improper or unlawful character. The practice is well settled in such cases, and there is an utter failure to comply with it here. Ingersoll v. Bostwick, 22 N. Y. 425 ; Grant v. Morse, Id. 323; Carman v. Pultz, 21 Id. 547; Lyon v. Mitchell, 36 Id. 682, 683.

■ I think that the plaintiff was a trustee of an express trust, within the meaning of the Code, § 113. The assignment of the demand of Halderman against the defendant to the plaintiff was for the benefit of another, and the action was properly brought in the name of the plaintiff.

There is no force in the objection that the assignment was not Iona fide. There was not a particle of evidence to impeach its good faith; and the testimony shows an ample and full consideration, and an existing indebtedness, which it was entirely proper to secure and satisfy in this manner.

I discover no error in any of the findings to which exceptions have been taken, and am in favor of the affirmance of the judgment, with costs of appeal.

All the judges concurred.

Judgment affirmed, with costs, and five per cent, damages.

Cases cited

Ingersoll v. Bostwick 22 N. Y. 425 N.Y. p. 485