262 F. 492 | 2d Cir. | 1919
Lead Opinion
(after stating the facts as above).
This court had the matter under consideration in Hammond v. Crawford, 66 Fed. 425, 14 C. C. A. 109. A paper signed by the broker stated that his understanding was that, in case he effected a sale or deal of certain mines, he was to have a certain compensation. The broker’s intervention did not result either in a completed sale or in an enforceable agreement for sale. This court held that the broker was not entitled to“his commission.
In Holton v. Job Iron & Steel Co., 204 Fed. 947, 123 C. C. A. 269, the defendant agreed to pay to plaintiff a specified commission “if this deal is put through.” The Circuit Court of Appeals in the Sixth Circuit held that the term “put through” meant to carry or conduct to a successful termination, and that, the plaintiff’s engagement being, not me'rely to obtain a party able and willing to enter into a given contract, but to bring the transaction about, and not having done so, he was not entitled to recover.
In Hale v. Kumler, 85 Fed. 161, 29 C. C. A. 67, the same court denied in a like case the right of the broker to his commissions. In that case the court held that where a broker was to become entitled to commissions only upon bringing about a completed agreement between his principal and a third party, he could not recover upon proof of a preliminary and tentative agreement upon certain elements of the proposed agreement which were afterwards abandoned by the principal and without fault. “The condition,” said Judge Lurton, “upon which Kumler is entitled to recover compensation has not been fulfilled, and, as he has not been prevented from its performance by the wrongful conduct of Hale, the latter is entitled to rely upon the nonperformance of the condition.”
“If my offer given this date to your corporation is áccepted by 5 o’clock this afternoon, and the deal consummated, I agree to pay you 5 per cent, commission,- the amount to be paid over to you when the full amount of the purchase price is paid over to me, from -the final payment”
There can be no doubt as to the meaning of this agreement. It is clear and unequivocal. “Consummate,” according to the Century Dictionary, means:
. “To finish by completing what was intended; perfect; bring or carry to the utmost point or degree; carry or bring to completion; complete; achieve.”
The agreement contemplated the actual sale of the vessel and the payment of the purchase money to the defendant as a condition precedent to the right of the plaintiff to any commissions; and as the .broker’s services did not effect either a completed sale or an enforceable agreement for sale, he is not entitled to the commission offered him. in the letter of January 8th, already quoted.
If it appeared that .consummation of the agreement was prevented by the wrongful conduct of the principal we should be obliged to hold that the broker was entitled to his commissions. Counsel for the plaintiff in his brief and argument in this court has laid great stress upon an agreement which the defendant made on January 16, 1918, with other parties for the sale of the vessel for $550,000 or $10,000 more than the price which defendant offered to sell the boat for in his letter of January 8, 1918. The' agreement of January 16th mentions the agreement of January 8th, and states that the second agreement is only to become effective in case the first agreement is not carried out.' We have given this second' agreement full consideration in all of its aspects and have examined carefully the circumstances under which it was made, and we fully agree that no blame attaches to the defendant for entering into it. The situation as it existed at the time it was made, and which we do not need to go into at length, fully justified its making.
The defendant acted in entire good faith throughout the whole of the negotiations, and the testimony not only shows beyond doubt that this was the case, but it shows, also, that the officers of the Cosmopoli-tán Shipping Company believed that there was entire good faith. The testimony of the vice president of that company disposes of the matter, as the following excerpt shows:
“Q. Now, Mr. Munez, did. Mr. Spielberg, at any time, throw any obstacle in your way of consummating the sale of this ship? A. Not as far as I could see; no.
“Q. Did he, so far as you know, do everything that he could to have file sale consummated? A. As far as I know he did; yes.”
The attorney for the purchaser who prepared the letter of January 8th and gave advice throughout the negotiations, and who did not in any way represent the defendant, gave the following testimony:
*497 “Q. And did he [the defendant], so far as yon know, do everything in his power to bring about the consummation of the sale of this ship? A. That was my impression, sir.”
Judgment affirmed.
Dissenting Opinion
(dissenting). In this case the plaintiff, as broker, not only produced a purchaser ready, willing, and able to buy the steamer Fordonian for $540,000, but a contract by correspondence was entered into by him with the defendant January 8, 1918, expressing all the terms of sale, and the purchaser deposited $54,0,00 of the purchase money in escrow. '
The defendant owned only one-half the steamer, but was under contract to purchase the other half. The second letter of January 8th, quoted in the opinion of the court, was accepted in writing by the defendant. One of its terms was the defendant’s statement that the steamer was at Bordeaux, where the purchaser could have her inspected for the purpose of confirming the defendant’s representations in respect to her within 6 days thereafter. Within 24 hours thereafter, if the inspection confirmed the representations, the defendant covenanted to deliver a bill of sale, and the purchaser covenanted to pay the purchase price. In a commercial contract like this, the representation that the steamer was at Bordeaux was a warranty. See out! decision in» Dorrance v. Barber, 262 Fed. 489,- C. C. A. -. In point of fact, the steamer was not at Bordeaux, and could not be inspected within six days, and because of this breach of warranty the purchaser could have withdrawn from the contract. Being, however, very anxious to carry it but, the purchaser offered to extend the time for inspection. The defendant could not do so, because he had, for want of funds, failed to complete his purchase of the other half of the steamer. It will thus be seen that, while the defendant had no contract which he-could enforce, his purchaser had an enforceable contract for damages against him. The sale was not consummated because of the defendant’s default. The fact that the parties to it subsequently exchanged mutual releases, and that the defendant was not guilty of bad faith, cannot affect in any way the plaintiff’s right to its commission under its independent contract with the defendant. If the purchaser, instead of releasing, had sued the defendant for breach of contract, and had recovered judgment, the contract could not be said to have been consummated, and the defendant would not have received the final payment out of which the commission was to come; but I think no one would deny the plaintiff’s right to his commission.
I think the court should have directed a verdict for the plaintiff.
