Silliman v. Albany & Troy Steamboat Co. — 53 N.Y. St. Rep. 160

Majority

p. 160

Charles A. Silliman, Resp’t, v. The Albany & Troy Steamboat Co., Limited, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

1. Brokers—Employment—Sale of vessel.

Plaintiff, who was engaged in brokerage of vessels, had conversations with defendant’s president, who said they would sell a steamboat if they could get enough for tier, and afterwards brought to him an agent of another line, to which the vessel was sold. At the first interview plaintiff said he wanted a commission if a sale was made. Held, that there was sufficient proof of an employment.

3. Same.

The year previous defendant had offered the vessel to said company for $30,000, but the offer was refused. The sale in question was foils?,000. Held, that this showed that a new negotiation was undertaken, and that the sale was not the outcome of the former negotiation.

Principal and agent—Presumption of repobt by agent.

The law presumes without proof that an agent reports to his employer.

Appeal from judgment in favor of plaintiff, entered upon a verdict for $6G0.

Action to recover commissions on the sale of a steamboat.

Plaintiff testified that he had u several off-hand conversations ” with Mr. George Mark, the president of-the defendant company, relative to the sale of the steamboat F. P. James, asking whether it was for sale, and that Mark replied, “ Why certainly we will sell her if we can get money enough for her, of coursethat thereafter he had communication with Dodd, who was in some way connected with the College Point Ferry Company, and that he took him to see Mr. Mark in regard to a sale of the boat; he says that this conversation with Mark and Dodd was at the office of James- M. Matthews, No. lljL Broadway, New York; he says that he introduced Dodd to Mark as the agent of the College Point Ferry Company, stating that Dodd had authority to make the purchase, and he said to Mr. Mark that if the sale was effected he wanted a commission, to which Mark said “ Hoo, hoo, hoo !’’

The witness further stated that he had not seen Mr. Dodd about

p. 161

the matter until just before he took him to the office of Mr. Mark.

Dodd testified that he was employed as agent of the Ferry Company and ordered to go to work and buy or charter a boat, and that after that he met the plaintiff and went with him to see Mr. Mark.

W. W. Goodrich, for app’lt; Edwin G. Davis, for resp’t.

was enough evidence of employment to take the case to the jury.

There is no substantial contradiction that at the first interview between Dodd and Mark the plaintiff stated that he was acting as broker, and should claim a commission if a sale was made. Nor does it appear that any denial was then made of defendants’ obligation to pay commission in that event. The president of defendant says he answered: “ No, sir, I have nothing to do with the handling of the steamboat; ” but he also testifies that the negotiation was at once engaged in between one of defendants’ officers and the agent of the purchaser.

The fact that defendants paid a commission of $1,000 on the sale to one of their agents who came into the discussion at this stage cannot affect the plaintiff’s right.

It is urged that the final sale was the outcome of a negotiation begun the year previous.

At that time defendants offered the vessel for $30,000, and the offer was refused.

It is plain defendants considered that negotiation abandoned, for they chartered the vessel to another corporation for the season. So the fact that the sale was for $7,000 more indicates that a new negotiation was undertaken.

A vendor whose offer is refused as too high does not ordinarily as a part of the same negotiation raise his price.

It is said the proof does not show that Dodd reported his action to the purchaser.

The law presumes without proof that an agent reports to his employer. Story Agency, §§ 160, 208. So strong is that presumption that knowledge of the agent is notice to the principal.

Judgment affirmed, with costs.

Barnard, P. J., concurs.

This is an action for the recovery of commissions for the sale of the steam ferry boat “ F. P. James.’’

The claim was contested upon two grounds: First,- that the plaintiff was not employed to make the sale; and, second, that the sale was not made by him.

There was no direct proof of employment; but there was testimony and there were circumstances from which an employment might fairly be inferred.

There was much conflict in the testimony; but the case was ■one peculiarly for the jury, and it was submitted in a plain and correct charge by the trial judge, and both questions were found in favor of the plaintiff.

p. 162

The counsel for the respondent took the position that there was no certificate that the case contained all the evidence; but the point was waived on the argument, and we have examined the case as though it contained all the testimony.

There being testimony sufficient to sustain the verdict, we cannot interfere with the verdict.

The judgment and order denying the motion for a new trial upon the minutes of the court should be affirmed, with costs.