American Marine Paint Co. v. Nyno Line, Inc.

An appeal by plaintiff from a judgment rendered in favor of defendant, after verdict by a jury, in an action brought to recover the sum of $16,500, claimed to be due appellant as commission for the sale of the steamer

This is the third time an appeal has been taken in this action. Juries in the two former trials found for the appellant, but the verdicts were set aside and new trials were granted by the trial court and the orders granting the same were, upon appeal, affirmed. The order granting the new trial following the first verdict was general in its terms, but upon appeal, when the question arose as to the ground upon which it was granted, it was held that whether said order was based upon the insufficiency of evidence or confusing instructions, the trial court had not abused its discretion in granting the same. (American Marine Paint Co. v. Nyno Line, 45 Cal. App. 1 [ 187 Pac. 71 ].) The order granting the retrial following the second verdict was made upon the express ground that the evidence was insufficient to sustain the verdict. Upon appeal it was again held that the trial court acted within its discretion in granting a new trial and that therefore the order appealed from should be and was affirmed. (American Paint Co. v. Nyno Line, 56 Cal. App. 331 [ 205 Pac. 45 ].) In this last trial the jury found a verdict for respondent, and judgment was entered accordingly. Appellant now seeks a reversal of said judgment upon the grounds that the instructions given to the jury were erro

Briefly stated, it is to the effect that in January, 1916, the “Portland” was on drydock near the city of New York, and at the request of a representative of the president of the respondent company, Lacombe agreed to interest himself in the sale of said steamer for a commission equal to three per cent of the sale price. A month later Lacombe opened negotiations with one Aaby, the son and representative of a Norwegian ship owner, which resulted in the making of a tentative offer by Aaby for the purchase of said steamer for $325,000', which included the payment of a commission to Aaby out of the sale price. Lacombe forwarded the terms of Aaby’s offer, by telegram, to Will E. Keller, the president of respondent company, who at that time was in California, and regarding commissions stated ‘ ‘ commissions five per cent foreign buyers which makes additional commissions necessary to close déal.” Keller, in his reply telegram to Lacombe, after setting forth the terms upon which he would sell the vessel, stated: “Out of this will pay you eight thousand dollars commissions. ’ ’ A few days later Lacombe wrote Aaby a letter offering on behalf of Keller to sell the steamer for a gross price of $325,000' and on the same day wrote him another letter wherein he stated that upon final payment for the vessel Aaby would receive a commission of one per cent on the total purchase price. About the same time, pursuant to a previous private arrangement between Lacombe and one Palmer, Lacombe agreed to pay Palmer one per cent of the purchase price. Later, on the same day, Lacombe sent a telegram to Keller reading: “Compelled to allow buyers three per cent; cannot complete deal less five per cent.” Afterward, on the same day, February 29, Aaby handed Lacombe a letter specifying more particularly the terms of his offer and at the same time deposited with Lacombe a check for $25,000. Thereupon Lacombe immediately sent Keller a telegram embodying the terms of Aaby’s offer, but making no mention of the commissions. Lacombe learned, for the first time, from the check and letter of Aaby, that the Kerr Steamship Company of New York city, and not Aaby’s father, as he had previously supposed, was the prospective purchaser. The contents of the telegrams

The court gave the following instruction to the jury, at the request of respondent: “In considering the evidence, you must treat the American Marine Paint Company, the plaintiff herein, and Mr. Laeombe, as one person, and if you

[1] Appellant contends that the instruction contains an inaccurate statement of the effect of Lacombe’s evidence, and was an invasion of the province of the jury in that it was an instruction upon a question of fact. There is no merit in either point. The statement of the effect of Lacombe’s evidence is in full accord with the undisputed testimony given by him upon that point. As stated in the instructions, Lacombe and his employer, American Marine Paint Co., must be treated as one person, and Lacombe admits that out of the transaction his employer was to receive two per cent commission and he personally was to receive an additional one per cent, making a clear three per cent commission for “plaintiff,” which in itself proves the falsity of Lacombe’s representation that plaintiff was receiving only two. per cent of the commissions, if in fact such representation was made. [2] True, the pronoun “he” was inaptly used in said instruction as referring to plaintiff, but Ave think the jury could not have been misled thereby in view of the fact that it has never been contended by anyone at any time that Lacombe represented that he personally was going to receive two per cent of the commissions. If, hoAvever, any confusion did arise therefrom, it was entirely dispelled by instruction No. XVIII, given at the request of respondent, which plainly stated to the jury the terms of the representation respondent claims was made by Lacombe; and, furthermore, the evidence upon this subject was perfectly clear. [3] In determining whether a jury has been properly instructed as to the law, the instructions taken as a whole must be considered (Henderson v. Los Angeles Traction Co., 150 Cal. 689 [ 89 Pac. 976 ]; Taylor v. Pacific Electric Co., 172 Cal. 638 [ 158 Pac. 119 ]); and questionable instructions are not ground for reversal where the rights of appellant are clearly stated to the jury in other instructions. (Moore v. San Vicente Lumpier Co., 175 Cal. 212 [ 165 Pac. 687 ].)

[7] Appellant further complains that the instruction given by the court upon the question of fraud did not include all of the essential elements thereof, namely, that the misrepresentation must be upon a material point; that it was necessary to show that Lacombe knew that the representa

[9] We are also of the opinion that the evidence is sufficient to sustain the verdict in favor of respondent. The decision rendered upon the preceding appeal practically disposed of this question when it sustained the ruling of the trial court granting a new trial to respondent upon the sole ground of the insufficiency of the evidence, after the jury had rendered its verdict in favor of the appellant. It appears from the opinion there rendered that there were but two debatable questions of fact left open for the jury’s determination, the first of which was whether or not Lacombe represented over the telephone that “he was compelled to allow the purchaser three per cent or the trade would not go through,” and, secondly, as to whether the jury believed Keller’s testimony that he relied upon such statement and that but for that reliance would not have agreed to pay the commission of five per cent which Lacombe insisted upon. The jury by its verdict resolved those questions of fact in favor of respondent and having done so its verdict must be accepted as controlling. The materiality of the representation is shown by Keller’s testimony to the effect that had it not been for the representation he would not have made the contract for the payment of five per cent commission; such was the very basis of the contract, so far as these parties were concerned; the falsity of the representation was proved by the fact that Lacombe knew before he telephoned that the payment of the additional three per cent commission to the buyers was not necessary in order to make the sale; and the question of whether Lacombe intended to deceive respondent was one for the jury to pass upon from all the

Finding no prejudicial error in the record, the judgment is affirmed.

Tyler, P. J., and St. Sure, J., concurred.