Ropes v. John Rosenfeld's Sons

Action for commission alleged to he due plaintiff from defendant corporation on account of the sale by plaintiff of defendant’s steamer, the Peter Jebsen.

It is alleged in the complaint that plaintiff was at all times mentioned therein, and still is, doing business in the city of New York under the firm name of I. F. Chapman & Co., and that “R. J. Chapman of San Francisco, doing business under the firm name and style of J. F. Chapman & Co., was the agent of said plaintiff.” It is alleged that on the date above named R. J. Chapman as such agent entered into an agreement with defendant “whereby defendant promised and agreed to pay to said plaintiff a brokerage of five per cent upon $215,000, provided the said plaintiff would secure the United States navy department as a purchaser of said sum of $215,000 of the Norwegian steamer Peter Jebsen”; that plaintiff secured the said United States navy department as a purchaser of said steamer at said figure, and defendant received the purchase price on May 26, 1898; that defendant thereafter paid plaintiff one half of said commission, but refused to pay the balance thereof. A second cause of action is for this sum, for work and labor performed in the same matter.

Defendant denies that there was any agreement between plaintiff and defendant other than as follows: That on May 22, 1898, defendant gave said R. J. Chapman a verbal offer to sell said steamer for the amount stated above, less five per cent, “subject to prompt reply” (which the court found was understood by the parties to mean that the “offer would expire and cease to be binding unless the steamer was sold and defendant notified thereof on the following day”). The answer avers that on May 23d “no prompt or other reply had been made to said offer, and on the afternoon of said 23d day of May, the said offer was withdrawn, and the said R. J. Chapman was notified thereof and thereto the said Chapman assented”; denies that plaintiff secured a purchaser for said steamer; denies the payment to plaintiff of any commission or that any commission is still due plaintiff, and alleges that

The court found as facts that on May 22, 1898, defendant gave R. J. Chapman as agent of plaintiff “a verbal offer to ■sell the steamer in plaintiff’s complaint referred to for the sum of $215,000 U. S. gold coin, less five per cent thereof ■‘subject to prompt reply’ ” (the meaning of prompt reply already stated). That on May 23, 1898, “no prompt or other reply was or had been made to said offer, nor was said steamer on said day sold nor had any purchaser therefor been found; that on the afternoon of May 23, 1898, the said offer of defendant was withdrawn and the said R. J. Chapman as such ■agent was notified thereof and thereto assented. ” “ That save as hereinbefore set forth there never was any agreement between the plaintiff or his said agent and the defendant respecting the said steamer. ’ ’ That after the said twenty-third day of May, 1898, defendant sold the steamer to the United States government for $215,000 and that the sale was not made through plaintiff’s agency, nor did plaintiff secure the United States navy department as a purchaser of said steamer and that there is not due plaintiff as commission or otherwise any sum whatever. Defendant had judgment, from which and from the order denying his motion for a new trial plaintiff appeals.

The facts disclosed by the record are made up of verbal personal communications, messages by telephone, telegrams, and letters of sundry persons, and testimony at the trial, and are somewhat voluminous. We will endeavor without unnecessary prolixity to state the established facts which appear to us to bear on the points raised in the briefs.

Captain Bradford, chief of the bureau of equipment of the navy department at Washington, on Saturday, May 21, 1898, telegraphed plaintiff in New York: “Am in the market for collier in the Pacific. Have you anything to offer?” Plaintiff thereupon replied by telegraph: “Will name you collier Monday,” and also telegraphed to R.

Construing the findings of the court to mean that the contract was one of brokerage, and accepting the finding as to the meaning of “prompt reply,” but challenging the other findings as unsupported by the evidence, plaintiff contends,— 1. That a purchaser was procured by plaintiff and presented to defendant within the time limited; and 2. That plaintiff was the procuring cause of the sale, and it is therefore immaterial (1) whether or not defendant knew that the party with whom it was dealing was induced to do so through plaintiff’s instrumentality, or (2) whether plaintiff during the negotiations knew that he was the moving cause of the sale, or (3) whether the sale was actually consummated after the expiration of the time limited. Plaintiff also claimed that defendant ratified the sale by plaintiff. Also that .the time limit extended to Tuesday because the contract was made on Sunday. Defendant contends,—1. That plaintiff’s right, whatever it was, whether to earn commission or to purchase the steamer, expired on Monday, May 23d, and that the evidence is clear that there was no person able, ready, and willing to purchase the steamer at that time; and 2. That plaintiff in any event did not find the purchaser and was not the moving cause of the sale.

As to the time limit, we think plaintiff had all of Monday in which to make the sale. His time had not expired when defendant attempted to withdraw its offer, and had plaintiff on Monday found a purchaser then ready, able and willing to purchase, he would have brought himself within the terms of the contract and would have earned his right to the commission. Defendant could not deprive plaintiff of this right

Plaintiff’s contention that because the agreement was entered into on Sunday the limit extended to Tuesday cannot be maintained. If the agreement had been made on Saturday there would be force in the argument that Sunday would be excluded under the statute. (Code Civ. Proc., sec. 11.) But the contract was not then made; on the contrary, the parties agreed on Saturday to meet on Sunday to make the agreement, and it was then made, and Chapman, plaintiff’s agent, on that day telegraphed plaintiff the offer. Nor can plaintiff’s contention that defendant ratified the sale by plaintiff, and thus waived the time limit, be sustained. The facts clearly show that, in accepting payment for the vessel through plaintiff, both parties reserved their respective rights as they related to the money now in 'question. And what money was paid as commissitSh. was paid by way of "compromise, defendant distinctly disputing plaintiff’s right to it under the contract, and with equal clearness disputing his right to anything further.

The question remains whether the procurement of a purchaser by plaintiff subsequently to the expiration of the time limit entitled him to commission.

In Zeimer v. Antisell, 75 Cal. 509 , the court quotes from Sibbald v. Bethlehem Iron Co., 83 N. Y. 382 : “The duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale; and the price and terms on which it is to be made, and until this is done, his right to commission does not accrue.” The court then adds this further rule: “It must appear that the broker performed the

The failure of the court to find on the second count of the complaint will not justify a reversal. It is not claimed in plaintiff’s brief that there was any evidence addressed to this issue, and in fact it was all directed to the alleged contract and sale under it. (Eva v. Symons, 145 Cal. 202 .)

The finding that plaintiff, through his agent, Chapman, consented to the withdrawal of defendant’s offer to sell the steamer rests upon very unsatisfactory evidence. But the view we have taken of the contract makes it immaterial whether plaintiff consented or not.

The judgment and order should be affirmed.

Gray, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

McFarland, J., Lorigan, J., Henshaw, J.

Hearing in Bank denied.