Jewett v. Emson — 25 N.Y. Super. Ct. 165

Majority

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James C. Jewett et al. plaintiffs and appellants, vs. Christian D. Emson, defendant and respondent.

Headnote

1. In an action "by the plaintiffs to recover their commissions as shipping brokers, for negotiating a charter of the defendant’s steamer to, and by, the constitutional government of Mexico, the plaintiffs produced at the trial, a paper signed by the defendant, headed “ Memorandum of the conditions of charter of the steamship M.” which they claimed to be an'agreement finally concluded between the parties. The defendant insisted that it was only a memorandum, from which a charter-party was to be drawn, and that no charter-party was in fact executed. The judge charged the jury that if the memorandum was considered by the parties as an agreement between them, leaving no further agreement to be made or drawn, and no new provision to be incorporated in it, but was signed by them, as containing the whole of what they agreed to, it was binding, and the plaintiffs became entitled to their commission, if there was nothing more to be done than to have duplicate copies of such paper made and signed, the agreement was concluded; but if it was merely a memorandum containing conditions to be embodied in a charter-party to he after-wards drawn up and signed, and such instrument was understood between them not to be delivered, and that there was to be no binding agreement between them until such future paper was drawn up and executed, then the negotiation was not concluded, nor the commissions earned.

Held that the law was correctly stated in this charge; and that the conducting evidence warranted the submission of the questions of fact embraced in it to the jury.

2. Held, also, that this disposition of the case met any claim for customary commissions on the ground of the completion of the agreement; and also disposed of the question of any prior agreement by the defendant (if made) to pay five per cent commissions to the plaintiffs, if the chartering should be completed, as it left the question of the completion of the bargain in each case to the jury.

(Before Robertson, Ch. J., Garvin and McCunn, JJ.)

Heard February 19, 1864;

decided April 23, 1864.

The plaintiffs and appellants, as ship brokers, sued to recover from the defendant and respondent, the sum of $1200,

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for services rendered in negotiating a charter of the steamer Massachusetts, owned by the defendant, and at his request, to the provisional government of Mexico, for six months, at #4000 a month. This sum of #1200, or five per cent on the amount to be received, they claim under a special promise and agreement, and that amount they allege the respondent promised to pay. This is testified to by the two witnesses, Jewett and Saulnier; but Saulnier says Emson agreed to pay it, upon a satisfactory charter of the steamboat. Jewett, one of the plaintiffs, testified that nothing whatever was said about the customary rates of 2J per cent commission. The defendant, in his answer, .denied all the material allegations of the complaint. No charter-party was ever executed, and no other agreement signed by either of the parties, than the one offered in evidence ; which was headed “ Memorandum of the condition's of charter of the steamship Massachusetts,” dated October 1st, 1859, signed by the defendant. The negotiation was terminated by reason of the charter-party, prepared by Saulnier to be executed, being materially different from the “ Memorandum of conditions,” and containing conditions and risks not embraced in said memorandum.

It appears from the evidence, that the plaintiffs advertised for a steamer in their firm name, by order of a Mr. Lerdo, and at his request. That this advertisement was seen by'a Mr. Kennedy, and he, knowing that the defendant had a steamer, went to Keyport and brought him up and introduced him to Mr. Saulnier, who pretended to be consul for the Mexican government. Saulnier afterw-ards, on Saturday, introduced the defendant to Mr. Lerdo, the Mexican minister. The paper or memorandum given in evidence was then produced by Saulnier, and after some additions and alterations being made, the defendant was induced to sign it, with the express agreement and understanding that it was only a memorandum, and that a charter-party should be drawn up and prepared by Mr. Saulnier in conformity with it, which was to be executed on the following Monday by the proper parties. • This memorandum, after being signed by the defendant, was taken by

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Mr. Saulnier, and put in his pocket, and no copy given to the defendant. . .

The jury found a verdict for the defendant; and a motion on the part of the plaintiffs for a new trial having been denied, they appealed.

Dan Marvin, for the plaintiffs, appellants.

F. C. Bliss, for the defendant, respondent.

By the Court,

A new trial was ordered in this case on the former occasion, when it was before the general term, principally on the ground that the plaintiffs were proved to be agents of the charterers and not of the defendant, the owner of the vessel in question. Evidence has been adduced in this case that they acted as brokers in bringing the owners and intended charterers together; and that in such cases, by custom in this city, the former are liable to the broker for a commission of two and one half per cent when the negotiation is closed. The plaintiffs would be fully entitled to recover such amount if they brought the parties together, and the negotiation was closed by an agreement. Winsor v. Dilloway, 4 Metc. 221 . Main v. Engle, 1 E. D. Smith, 620. 1 Allen, 494 .)

A written paper was produced on the present trial, signed by the defendant, dated .October 1, 1859, headed “memorandum of the conditions of charter of the steamship Massachusetts,” which had some interlineations, erasures and alterations, but which the plaintiffs claim to have been an agreement finally concluded between the parties. It contained minute details of the terms of the proposed charter, but had in it nothing to show who were the parties to the agreement. The defendant, who was examined as a witness on his own behalf, testified, among other things, that at the first interview between himself, Jewett, one of the plaintiffs, the supposed Mexican minister, (Lerdo,) and the supposed Mexican consul, (Saulnier,) on Saturday, the 1st of October, he signed such paper. • Saulnier first took it out of his pocket, partly written,

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before they began to talk, saying he had it for some other vessel, and then wrote more on it. When they got the matter' talked over, he wrote it down. The witness added: “ After it was all done they requested me to sign it; they just read some few particulars, and he (Saulnier) said, ‘ now, just sign that/ I told him it was no use signing until the charter was made ; ‘ well/ he says, ‘ this is only a memorandum to make a charter; if you come up Monday morning 111 have that charter all drawn according to this memorandum.’ On the Monday following, a formal charter was prepared by Saulnier and offered to the defendant to sign, which he refused in consequence of a variance between the terms of it and such memorandum.” This statement of the occurrences at such interview was contradicted by Saulnier and. Jewett in their testimony, which made such memorandum an agreement signed by the defendant in order to make it binding.

The learned judge, before whom the action was tried, charged the jury that if such memorandum “ was considered ” by the parties “as an agreement between them, leaving no further agreement to be made, no new agreement to be drawn, no new provision to be incorporated in it, but was signed by them as containing precisely what they did agree to, and the whole of what they agreed to, then it was binding, and the commission was earned. If there was nothing more to do on the following Monday than to get for the better protection of each party, duplicate copies of it, signed by them, so that each one would hold a clean copy, the agreement was concluded,” but if it “ was merely a memorandum, containing the conditions to be embodied in a charter-party, which was to be afterwards drawn up and signed, and it was understood between them that it was not a delivered instrument, and that there was to be no binding agreement between them, until such a paper was drawn up and executed, then it was not concluded, and the commissions could not be earned.” Also, that the plaintiffs would not perfect their commission “ because the Mexican government refused to go on with the contract they had executed,” or because it or its “ agent insisted on having further

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clauses in it, to which the defendant would not consent.” No fault can be found with the law of this charge, which is clearly and admirably stated, and the conflicting evidence warranted the submission of the questions of fact embraced in it to the jury. They have passed upon them and there is no reason to disturb their verdict upon the ground of weight of evidence.

This disposition of the case was sufficient to meet any claim of customary commissions, upon the ground of the completion of the agreement, and it equally disposes of any prior agreement by the defendants, if made, to pay five per cent commissions to the plaintiff, if the charter should be completed, by leaving the question of the completion of the bargain to the jury.

The making of such agreement was submitted to the jury on conflicting testimony. The court did not charge the jury that, if that agreement was not made, although the agreement for the charter was, the plaintiffs were not entitled to the customary commissions; but merely that if the defendant, as he testified, told Saulnier in the presence of Jewett, that he did not want to pay any commissions, but would take him to Mexico without expense, the plaintiffs were entitled to no commissions, customary or otherwise.

The judgment must be affirmed, with costs, and the order denying a new trial also.