Majority
p. 523Thomas B. Stillman, plaintiff and respondent, vs. Samuel L. Mitchell, defendant and appellant.
Headnote
1. A principal who has been brought by a broker into communication with the party with whom he is dealing, cannot deprive such broker of his commissions by taking the negotiation into his own hands and completing the sale; much less deprive him of the benefit of the initiatory steps taken by him, by revoking his authority to complete the transaction. ,2. It is sufficient for a broker, in order to entitle himself to commissions bn a sale, to bring his principal in contact with a satisfactory purchaser, with whom he completes the bargain to bring which about the broker was employed as an agent.
3. In an action to recover brokerage on the sale of steamships to the United States government; Held that the judge properly charged that the main question for the jury to determine was, whether the plaintiff’s action in the matter directed or drew the attention of the navy department, or its agent, to the steamers, as vessels for sale, and led to negotiations that resulted in the purchase; and that he was not bound to charge that the plaintiff’s agency was the procuring cause of the sale.
4. The only conditions precedent to a right to recover, in such an such an action, are, the original discovery of the purchaser, the starting of the negotiations by the broker, and a final closing of the bargain by or on behalf of the principal.
5. The fact that a person employing a broker to sell vessels and binding himself personally by a contract under seal to pay a specified commission when
p. 524(Before Robertson, Ch. J., and Monell and Garvin, JJ.) Heard October 29, 1864; decided December 16, 1864.
ever a sale shall be effected as a consequence of his exertions, is not himself the owner of the vessels, will not deprive the broker of his commissions, or defeat an action brought by him, therefor, against his employer.
Appeal by the defendant, from a judgment and from an order denying a motion for a new trial on a case and exceptions. The cause was tried before Justice White and a jury. • The action was for brokerage and commissions on the sale of the steamers “Augusta,” “Alabama” and “Florida” to the United States, in August, 1861. The agreement between the parties upon which the action is brought was under seal, and dated on the 9 th day of May, 1861, as follows :
“ Whereas, I desire to sell the steamers Augusta, Alabama, Florida and Star of the South. Now, in consideration thereof, .and of one dollar to me in hand paid by Thomas B. Stillman, of the city of New York, I do hereby constitute him, the said Stillman, my true and lawful agent or attorney, to dispose of said steamers, or either of them, at such prices and on such terms as may be hereafter agreed upon; and I do hereby agree to pay to said Stillman, his heirs or assigns, ten per cent of the total amount that said steamers or either of them may be sold for. Witness my hand and seal, this ninth day of May, 1861.
Samuel L. Mitchell.” [l. s.]
The complaint alleges the employment of the plaintiff as a broker of the defendant to procure a purchaser of said vessels, or effect a sale thereof, and the execution and delivery of the agreement, and that the plaintiff entered upon the performance of his duties, as such broker, and exerted his best abilities to 'effect a sale of the vessels,' and expended his time, labor and money in such effort, and went to Washington city and offered the vessels for sale to the United States government, and recommended their purchase by the government, and entered into negotiations for the sale thereof. That afterwards, and in August, 1861, the three vessels were sold to the government for $276,500, in consequence of the efforts and labor of the
p. 525
plaintiff!, and that the defendant has not paid the commissions, or any part thereof.
The answer denies the allegations of the complaint, except as expressly admitted. For a further answer, it is alleged that the plaintiff, on or about the 9 th of May, 1861, applied to the defendant for his signature to an application for office, and at the same time suggested that he had friends at Washington, and if he had a paper showing his authority, he might be able to sell the steamers, and that the-defendant signed the agreement after persuasion by the plaintiff. That the plaintiff, never to the defendant’s knowledge, expended any money for the purpose of effecting a sale of the steamers, nor did he procure any customer for the ships, or either of them, or introduce, or set on foot any negotiations for the sale of the same. That the steamers were owned by the New York and Savannah Steam Navigation Company, which fact was well known to the plaintiff, and the steamers were sold by the company, without the intervention of the plaintiff, who had abandoned all right to sell them, and the defendant had revoked the authority, and the steamers were sold through another agent, who had been paid by the defendant. For a further answer, it is alleged that no price or terms were ever agreed upon between the parties for the sale of the vessels. On' the com trary, the plaintiff, before the 10th of August, 1861, reported to the defendant that the government would not purchase side-wheel steamers, whereupon the defendant in behalf of the company employed another agent who sold the vessels.
Before the trial it was stipulated that the pleadings might be amended by either party in any particular, setting up any further claim or defense which might be advisable. Upon the trial considerable evidence was given not relevant to the par-, ticular claim and defense set up in the pleadings, and in view of a possible amendment under the stipulation. At the close of the evidence, the judge asked the counsel if they had amended under the stipulation, as it would be necessary to know in order to shape his charge. The counsel replied that they had not, and did.nbt intend to. The judge charged that
p. 526
the testimony as to matters outside of the issues, as the same were left, must be disregarded by the jury, and that the action was solely upon the written contract between the parties. It appeared upon the trial, that the steamers were the property of the New York and Savannah Steam Navigation Company, of which the defendant was president. The affairs of the company were managed by a board of five trustees, of whom the defendant was one; his son, owning twenty-five shares transferred to him by the- defendant, to make him a director, was another. Mr. Stratton, the secretary, owning a single share, was a third. The other two trustees were out of the city at the time of these transactions, one being in Savannah. The agreement counted on was proved and read in evidence, and the plaintiff gave evidence to prove the services alleged, and rested. Evidence was given in behalf of the defendant in some respects contradictory of that on the part of the plaintiff. There was evidence that the defendant had paid to the agent of the government by whom the steamers were purchased, (Mr. Morgan,) a commission of two and a halfvper cent, and this, with the assent of the plaintiff, was de-: ducted - from the amount claimed, and the jury, under .the. charge of the court, rendered a verdict for $20,837. Several exceptions were taken in the progress of the trial, and to the charge, and upon a case and exceptions a- motion was, made for a new trial, and denied.
Judgment having been perfected, the defendant appealed.
G. Dean, for the appellant.
I. To entitle a broker to recover commissions on a sale of property, two things are necessary to be established, viz : His authority to act as the agent or broker of the defendant, and also that Ms agency was the procuring cause of the sale. (7 Car. & Payne, 584. 8 id. 1. 5 Bosw. 83 . 34 Barb. 90 . (a.) In the case cited in 34 Barb. Judge Allen dismissed the complaint, and the court, in affirming the judgment, hold: “ Where a negotiation, conducted by a broker, is broken- off before any binding agreement is entered into between the. par
p. 527
ties, and thereupon a new agreement is entered into for a part of the property only, and varying essentially in its terms from the first, without any agency or intervention of the broker, the latter will not be entitled to a commission.” The present case fits exactly this pattern. (6.) There is no evidence that Still-man ever offered these steamers for sale to the government, (c.) If he did, it was at a time when the government would not buy; and refused to entertain any proposition, and to the wrong department. The appropriation for the purchase of steamers was not made until the 17th of July, 1861. (12 Stat. at Large, 267.) (d.) The plaintiff was not in Washington after June; the government then refused even to negotiate with him, and his report of that fact not only authorized the defendant to act for himself, or get another broker, without incurring the penalty of this enormous ten per cent, (e.) The charge of the court on this point was contrary to the law as settled by the authorities above cited.
II. The complaint avers that the government purchased these vessels from the defendant and that the defendant delivered them to the government; the proof is uncontradi'cted that the purchase was from the New York and Savannah Steamship Company. The seventh request to charge was : “ The sale of the vessels by the New York and Savannah Steamship Company was not a sale by the defendant, and does not entitle the plaintiff to recover the commissions.” This was refused. Either the plaintiff was dealing with the defendant as the known agent of the company when he entered into the contract, and his services were for the company, in which case the defendant is not personally liable, or a sale by the company is not a sale by the defendant.
III. The court erred in refusing to charge ■ “ That if the plaintiff knew, when this power was executed, that the defendant did not own the ships and could not convey them to a purchaser, that the power was revocable, and that the plaintiff can recover only the value of the services rendered by him before the defendant notified him to cancel it.” (a.) A principal may at any time revoke the authority of the agent, when such
p. 528
authority has not been executed in part, and no injury is worked thereby. (Story on Contracts, § 192. Story’s Agency, 462-5.) (b.) Revocation may be made by «public or formal declaration, by an informal instrument, by a word of mouth, or implied from circumstances. The revocation takes effect, as to the agent, when he receives notice thereof. (Story on Contracts, § 193. Story’s Agency, 4. Morgan v. Stelle, 5 Binn. 305 .) (c.) An agent may renounce his authority at any time, and to cease to act is a renunciation.
IV. The court erred in refusing the third request: “ That under the agreement a sale negotiated by the plaintiff, on terms and at prices to be agreed upon between the plaintiff and the defendant, is a condition precedent to the plaintiff’s right of action.”
Y. The court erred in charging, that the plaintiff was entitled to recover all or nothing, as at folio 442, or in the written instructions at folio 450, that the jury may “ find any amount less than the ten per cent named in the contract, which they may consider right under the testimony and charge.”
YI. The judge should have charged as requested that, “ Any contract which conflicts with the morals of the time, and contravenes any established interest of society, is void as being against public policy. If the jury believe that the agreement on which this action is brought was made in reference to the influence of the plaintiff or his friends with the republican members of the administration, or with any persons connected with the administration, whose duty it was to act in the purchase of Steamers, and the per centage, as commissions, were fixed in reference to that influence, that the contract is void, and no action can be sustained on it.” There was some evidence on this subject, and the charge of the court taking the matter from the consideration of the jury, was erroneous. (Story on Contracts, §§ 541 to 548. 13 John 112 . Comst. 129. 5 Denio, 534 . 4 Comst. 449. 10 Barb. 489 . Story on Cont. 569, 576, 7.)
There was evidence that this contract was made with a view through the plaintiff’s political influence, to sell these steamers for an exorbitant price.
p. 529
VII. The court should have granted the motion to dismiss the complaint, on the.ground that the action of. the government, in refusing to trade with brokers or third parties in the purchase of vessels, annulled or revoked this power of attorney or contract, and that, therefore, no action can be maintained upon it.
W. F. Allen, for the respondent.
I. The action was properly brought against the defendant. He alone was liable upon the contract.
(1.) The New York and Savannah Navigation Company were not parties to the covenant. The defendant covenanted in his own name, and bound himself personally.
(2.) It is no defense that the other parties were interested, •and that the services to be rendered by the plaintiff were in their behalf and for their benefit. The defendant had the .right to as he did undertake for them, and to do what they might have been reasonably expected to do.
(3.) The,defendant had a personal interest as well as agency in the sale of the vessels. • He was in truth the sole actor for the company in the transaction, and did sell and transfer the vessels. Standing in the relation he did, it was not unreasonable that he should enter into this covenant with the plaintiff. But his relation to the company or other owner of the.vessels is not material. The action only concerns his relation to the plaintiff under his contract. (Evans v. Wells & Spring, 22 Wend. 32 ,5. Williams v. Christie, 10 How. 12 . Gill v. Brown, 12 John. 385 . Sheffield v. Watson, 3 Caines, 69. Main v. Eagle, 1 E. D. Smith, 619. Russell on Factors and Brokers, 155. Simonds v. Heard, 23 Pick. 125 . Tippets v. Walker, 4 Mass. R. 595 . See also 5 id. 300; 6 id. 56; 11 id. 54; 10 Cush. 324 ; 5 id. 210.)
II. The complaint made a cause of action against the defendant. The contrary is not claimed. It avers the agreement, the action of the plaintiff under it, and the sale of the vessel as the result of his labor and expenses. The averments
p. 530
in the complaint being true, the commissions agreed to be paid were earned.
III. The only issues of fact made by the pleadings were, 1st. Upon the allegations of the complaint, (a.) That services were rendered and moneys expended by the plaintiff in and about the procuring a purchaser of the vessels. (6.) That the vessels were sold in consequence of the efforts and services of the plaintiff, (c.) That the vessels were sold for $276,500. 2d. Upon the allegations of the answer, (in addition to the allegations that the vessels belonged to the New York and Savannah Navigation Company.) (a.) That before the sale the plaintiff had abandoned all right to sell the vessels, and the defendant had revoked the authority given to him. (6.) That no price or terms for the sale of the vessels were ever agreed upon between the parties to the action, (c.) That the plaintiff reported that he could not1 sell the vessels, and the defendant thereupon employed another agent who sold them.
IV. Much evidence was given upon the trial touching other services of the plaintiff for-the defendant or the company represented by the defendant, and other causes of action, and in view of a contemplated amendment of the complaint, a.t the close of the trial the plaintiff declined to amend, and the evidence not pertinent to the claim for the sale of the vessels was withdrawn from the consideration of the jury, and'might with propriety have been omitted in making up the case. No material questions of fact arose upon the allegations of new matter in the answer.
1. The allegation of the abandonment of the right to sell by the plaintiff was not supported by any evidence, and so far as the question could be material, was involved in the affirmative claim of the plaintiff that he had by his services entitléd himself to the commission claimed.
2. Any revocation by the defendant of the authority of the plaintiff to sell, could not deprive the latter of the commissions already earned, or those to which he might become entitled by a subsequent sale of the vessels of which the plaintiff, by efforts made before the revocation, was the primary cause, whatever*
p. 531
might be the effects as to any subsequent services of the plaintiff. Whatever was done by the plaintiff towards effecting a sale of the vessels, was done before the pretended revocation, and the defendant could not, by any act of his, deprive him of the proper compensation for such services.
3. The right of the plaintiff to recover for his services, did not depend upon an agreement between the plaintiff and defendant as to the price and terms of sale of the vessels. All that the clause of the agreement referred to imports is, that the terms and conditions of sale were to be fixed by agreement with the purchaser at the time of the sale. The plaintiff was not to delay action or to labor without compensation until such terms should be fixed. Gircumstances might affect the terms and prices, and hence they were not prescribed in the instrument creating the agency. When the sale was accomplished, the price and terms were .agreed upon. (Morgan v. Mason, 4 E. D. Smith, 636. Chilton v. Butler, l id. 150. Murray v. Currie, 7 C. & P. 584.)
4. The employment of another agent to sell the vessels, did not affect the right of the plaintiff to hig commissions, if he earned them. ■ But the individual to whom the commisssion was paid, was in no sense the broker or agent of the ship owner. He acted in behalf of the government, and his commission was for services rendered the government, and not the ship owner. The fact that the defendant paid the ’commission did not change the relation of the parties.
Y. The motion for a new trial on the merits was properly denied. The evidence on the part of the plaintiff fully author-. ized the verdict, and ft was for the jury to say whether the evidence was worthy of belief. Upon a conflict of evidence, the jury are the sole judges of the fact, and their verdict is final, unless the evidence so strongly preponderates against their verdict as to be evidence of corruption or passion. Here, upon all the evidence, the plaintiff was entitled to the verdict. The defendant was desirous of effecting a sale of the vessels. He so says in the covenant signed by himself. The reasons are obvious. The rebellion was upon us, and the steamers were
p. 532
withdrawn from their route, and the business of the company was broken up. ,
The government were about the only purchasers of that kind of property, and had the reputation of paying good prices. The reasons for employing the plaintiff were good and proper reasons. The plaintiff went to Washington on this business, May 25th, and recommended the vessels, and being an engineer, such recommendations were of value. He remained about a week. The plaintiff went with Commodore Foote, Mr. Garvin and Mr. Delano to examine the vessels; and again urged their purchase. This examination was in consequence of the action of the plaintiff.. He saw Mr. Morgan about 15th June, and called his attention to these vessels. He afterwards, and about 27th June, went to Washington again, -with the defendant’s knowledge and assent, an’d on this business solely, and called the attention of the secretary of the navy again to .these vessels. The plaintiff told the defendant that the negotiations would be conducted in New York, and he would probably be called upon for his terms. The plaintiff and defendant •conferred as to the price. The vessels were sold to the government for $277,828. Upon this evidence, uncontradicted and unimpeached, no one can claim that a verdict of the jury, that the plaintiff was the primary cause of the sale ; that he found the purchaser, introduced the matter, brought the parties together, and opened the way to the negotiations that resulted in a sale, could be disturbed. Whatever of contradiction or impeachment there was, with all the evidence, was fairly submitted to the jury.
The defendant does not disprove or contradict material parts of the testimony of the plaintiff. He gave a different color to the transaction, and differs in unimportant circumstances. The verdict cannot be disturbed, against evidence. The mass of evidence, in which there was more or less conflict, was rendered immaterial by the omission to amend the complaint, and must be considered as out of the case. It should be added that as to all these matters, the weight of the evidence was with the 'plaintiff.
p. 533
VI. The material questions arise upon the exceptions. The most important exception is to the rule prescribed for determining the liability of the defendant.
The charge was in substance that if the plaintiff directed or drew the attention of the navy department, or of Mr. Morgan, to the steamers, as being for sale, and by his action led to negotiations which resulted in the sale, he was entitled to his commission. This charge was right.
1. The contract between the parties was a brokerage contract. It is so in terms. It was so treated by the parties, and so regarded especially by the defendant.
2. The services bargained for were to bring about a sale to the government. A particular purchaser was in the mind of the parties. This is apparent from all the evidence, and the influence and exertion of the' plaintiff was the thing bargained for.
3. It was treated as a brokerage contract by all parties upon the trial, and especially by the defendant in his request to charge. The charge was substantially in the very words of the leading cases upon the subject, and in accordance with the established rules. (Chilton v. Butler, 1 E. D. Smith, 150. Morgan v. Mason, 4 id. 636. Murray v. Currie, 7 C. & P. 584. Wilkinson v. Martin, 8 id. 1. Jewett v. Emson, Ante, p. 165, opinion of Robertson, Chief Justice. Glentworth v. Luther, 21 Barb. 145 . 18. id. 160 .)
The charge was substantially in accordance with the request. The facts suggested in the charge would make the plaintiff “ the primary cause of the sale.” It is to be inferred that the judge did charge in the words requested, as there was no refusal so to charge and no exception to any refusal so to charge. (Burnett v. Bouch, 9 Car. & P. 620.)
VII. The only other exception to the charge \vas to the instruction to the jury, that if they should find that the plaintiff had earned his commission, they might find a verdict for any amount less than agreed to be paid. This was assented to by the plaintiff. As this was more favorable to the defendant
p. 534
than he could ask, it is no cause of complaint or ground for a reversal of the judgment at his instance. He may, if he pleases, . now increase the verdict to any amount that he says is right.
■ VIII. The exceptions to the refusal to charge are not well taken.
1. They are not sufficiently specific. They cannot be grouped together. The counsel should have called the attention of the judge to each request, and excepted to a refusal to charge iaccordance with each request. The judge had a right to know which request it was claimed he had not noticed and disposed of (Jones v. Osgood, 2 Seld. 233. Caldwell v. Murphy, 1 Kern. 416.)
2. The requests were improper, except as charged by the judge, (a.) The charge was substantially as asked in the first request, (6.) There Was no evidence given of a claim made for services after the pretended revocation of the power. The letter of revocation was dated August 13th, 1861, and repeated August 19. All the vessels had been purchased by the government, and the transfers made before this. The services had been rendered, and the commissions earned, (c.) The defendant did agree to the form and terms of sale, and the plaintiff has not objected. • There was then an agreement between the parties, if this was necessary * but all that this clause in the agreement imported, was that the plaintiff was not agent to sell, with the power to fix the price, (d.) There was no allegation in the answer or evidence upon the trial upon which to found the 4th request. It is not improper to bargain for skill or influence to accomplish any lawful purpose. Corruption is not implied, (e.) The charge was as requested in the 5th proposition. (/.) The 6tli request cannot be sustained. All that a broker ordinarily does is to bring parties together, and whether the parties personally negotiate, for otte reason or another, is not material. The broker does not forfeit his commission by reason of the Caprice or peculiarities of the purchaser-choosing to conclude the purchase in a way of his own devising. (g.) It is enough, in answer to the 7th request, to say that the defendant was anxious to sell the vessels and was willing to pay
p. 535
for the services of the plaintiff in effecting the sale. As between the defendant and the steamship company, the particular interests and liabilities of each do not concern the plaintiff. (Z¿.) If the fact of ownership is not material, a knowledge of the fact cannot affect the plaintiff, (i.) The government has great power and exercises it all, but it cannot direct the rights of partiés under contract for services, or release parties from their legal obligations. •(/.) The notice of revocation was after the sale. It could do no mischief then.
IX. The several exceptions in the progress of the trial to the exclusion ot admission of evidence were not well taken.
By the Court,
The request on the trial, on the defendant's part, to charge the jury in this case, that the agreement in controversy was void, if it was made in reference to the influence of the plaintiff or his friends; with members of the administration, or persons connected therewith whose duty it was to act in the purchase of steamers* and the commission fixed in reference • to that influence, was properly refused. No such defense was set up in the answer, and any evidence to that effect, if introduced, would not authorize an amendment to it under the 173d section of. the Code, because the verdict was for the plaintiff. The only evidence approaching such a state of things was the plaintiff’s declaration, before the contract was made, that he knew some members of the administration and had friends who could introduce him to others, and do something, and would have to pay part of the commission to friends vvhom he depended upon “ to assist him in selling” the steamships in question, and his statement, after the attempt by the defendant to revoke his authority, that he had “ friends," or there were “ persons who were interested in the contract,” jvllo would not consent to give it up; This did not show an understanding that any corrupt or improper influence was to be used. The plaintiff was not then an officer of the United States government. And I am not aware of any principle or authority which prevents a party from using legitimate influ
p. 536
ence in a proper way to accomplish a result and receiving compensation therefor.
The instrument sued upon was not a mere power ; it was a contract. If the services of this plaintiff rendered in pursuance of it, tended in any way to promote the sale afterwards made, the defendant had no right to terminate the contract by a revocation of the power. The contract was entire, and the defendant could not deprive the plaintiff of full compensation by preventing him from carrying it out. Any request to charge to the contrary was properly refused.
The terms and price of the sale of the vessel was evidently left indefinite in the contract intentionally. It was not a sale of the vessels, but an agreement to compensate at a high rate of commission in order to stimulate the plaintiff to procure the highest price possible. The plaintiff’s rate of compensation or right to any was not to depend on the defendant’s disagreement as to terms, by his refusal of offers, brought about by the ■plaintiff, but on his acceptance of one or more of them. If the sale in question was brought about by the plaintiff’s means, in legal contemplation, both parties agreed in fact to the terms. The third request of the defendant’s counsel to instruct the jury was properly refused.
The defendant, who was president of the company that owned the vessels, arid who finally conducted the negotiations on their part, which led to a sale, was apparently empowered to select agents to dispose of their property, and having employed the plaintiff for the purpose, bound himself individually by a contract under seal to pay the latter the commission in question, whenever a sale should be effected as a consequence of .his exertions. The contract did not contemplate a sale by the defendant of his own property, but a sale of certain vessels by the then owners. It would be rather an extraordinary doctrine that because a. party knew that another was not the owner of property, he was not entitled to paymdnt from him of commissions in case of its sale, for which he became personally responsible. The allegation in the complaint of the party who sold the vessels, if at variance from the fact as proved, may be
p. 537
amended, to conform to it. The seventh and eighth ¿requests to instruct the jury on the part of the defendant, were therefore properly refused.
No action of the government in dealing directly with the principals, could deprive the broker who brought them together to settle the terms of a purchase, of his commissions, and particularly could not terminate a contract between the principal and his broker. The sixth and ninth requests to instruct the jury, were therefore properly disregarded.
There was sufficient evidence in the case to show active measures taken by the plaintiff in consequence of the contract in question, to bring the steamers in question to the notice of the federal government; and induce it to buy them. He presented them to the notice of its officers; went with a commission to examine them, which he testifies without contradiction was so sent in consequence of his action; called the attention of the newly appointed government agent to them ; ascertained the intended course of the government in regard to the purchase of steamers by direct negotiation with owners, and communicated to the defendant such intended action, and they consulted together as to the terms. There was no request to charge the jury in relation to any abandonment by the plaintiff of the contract as set up in the answer; if it is to be considered as amounting to that. The testimony of the two parties is conflicting upon that point, and it is to be presumed that the jury were satisfied no such abandonment ever took place. The doctrine of the case of Barnard v. Monnot, ( 34 Barb. 90 ,) was inapplicable, as in that case the new contract was essentially different from the negotiation which fell through. A principal cannot deprive his broker of his commissions by taking the affair into his own hands and completing a negotiation for a sale, (Morgan v. Mason, 4 E. D. Smith, 636; Chilton v. Butler, 1 id. 150 ;) much less deprive him of the' benefit of the initiatory steps taken by him, by revoking his authority to complete the transaction. Neither the inability of the principal nor the refusal of the third party to complete the contract will destroy the right to commis
p. 538
sions. (Glentworth v. Luther, 21 Barb. 145 . Holly v. Gosling, 3 E. D. Smith, 262.) Mere length of time between the. inception and completion of the negotiation, or even interruptions in it do not affect the right, if the final consummation be fairly attributable to the first steps taken by the broker. (Morgan v. Mason, ubi sup.) It is sufficient for a broker, in. order to entitle himself to commissions on a sale, to produce to his principal a purchaser with whom he is satisfied, and with whom he completes the bargain for making which the broker was employed as an agent. (Glentworth v. Luther, ubi sup.) The cases fully justify the charge of the learned judge before, whom the cause was tried, that the main question for the jury to determine was whether the plaintiff’s action in the matter directed or drew the attention of the navy department of the United States, or its agent, to these steamers, as vessels for sale, and led to negotiations that resulted ithe purchase. (Murray v. Currie, 7 C. & P. 584. Wilkinson v. Martin, 8 id. 1. Burnett v. Bouch, 9 id. 620. Jewett v. Empson, ante, p. 165.) He was not bound to charge as requested by the defendant’s counsel in the language of some of the cases, that the plaintiff’s agency was the procuring cause of the sale. The only conditions precedent to a right to recover are, the original discovery of the purchaser and the starting of the negotiations by the broker, and a final closing of the bargain by or on behalf of the principal. The first request to charge was therefore refused.
An exception taken to the refusal to admit a draft of an agreement in evidence was obviated by its subsequent introduction. I am unable to see how the draft of an agreement proposed by the plaintiff to be, but never, in fact, made by the defendant, which was excluded, or, the intention of the plaintiff in i:upsetting” a committee at Washington had any bearing on any question at issue. The fact that the plaintiff had a conversation with a public officer as to the sale of the vessels was pertinent, as showing his efforts. What he said was not admitted. The resolution of the company to sell their steamboats was immaterial, unless it tended to prove a want
p. 539
of authority to transfer the title. It is not in the case to enable us to judge of its materiality. An attempt to prove the usual commissions for selling vessels was properly excluded. The conversation with the government agent was properly admitted to show the'plaintiff’s movements in bringing about a sale. The proof that the plaintiff was on board of one of the vessels when the government officers were also on board, was proven for .the same purpose. These comprise all the exceptions insisted upon.
There being no error in the admission or rejection of testimony, or the charge of the judge in the matters excepted to, the judgment should be affirmed with costs.[1]
(a) (a) This decision has been recently affirmed in the Court of Appeals.
Cases cited
- Barnard v. Monnot 34 Barb. 90 p. 526, p. 537
- Harris v. Roof's Executors 10 Barb. 489 p. 528
- Glentworth v. Luther 21 Barb. 145 p. 533, p. 538