Brand v. Sterling Motor Car Co.

| Mass. | Dec 18, 1922

Jenney, J.

In this action the plaintiff alleges that he is entitled to compensation for services rendered in securing from the Poole Engineering and Machine Company of Baltimore, Maryland (hereinafter called the Poole Company), contracts for work required in the manufacture of certain ammunition shells, and in and under an agreement with the defendant relating to a contract with the United States for the manufacture of such shells.

Count one of the declaration relates to services in securing contracts with the Poole Company and count five is founded on the agreement as to the contract with the United States. No other counts are directly involved.

During the World War the defendant was a manufacturer of munitions and the plaintiff was in the business of obtaining and subletting contracts for war material. The defendant, having had previous dealings with the plaintiff relating to munition contracts, on October 5, 1916, addressed to him a letter in which, for the stated “consideration of services rendered and to be rendered in securing contracts” from the Poole Company, it agreed to pay him $8,000 because of a contract then existing with that company after payments thereunder were received, and a commission of eight mills for each shell manufactured on “ any further contracts for machining shells.”

The plaintiff accepted this proposal and on the evidence a finding would have been justified if not required that for some time thereafter both the plaintiff and the defendant acted under its terms in all matters relating to the business of the defendant with the Poole Company. No question arises except as to services rendered after the letter was written.

The defendant contended that the evidence did not warrant a finding for the plaintiff upon the first count and excepted to its submission to the jury. The following facts either were not in dispute or warrantably could have been found: The plaintiff had, prior to October 5, 1916, acted in the defendant’s behalf in relation to a contract with the Poole Company and had received a commission for so doing. While engaged in the defendant’s behalf, he ascertained that the Poole Company, of which he had previously known, had a contract for shells with Russia; he communicated that fact to William T. Marsh, the defendant’s president, who agreed to go to New York or Baltimore when notified by him. After meeting the plaintiff in New York, Marsh went to Baltimore and closed the first contract of the defendant with the Poole Company. After the letter to the defendant dated October 5, 1916, the plaintiff kept “in touch” with the defendant by letter, telegrams, and telephone, and from time to time advised Marsh, who acted in its behalf. He also on different occasions saw the manager, superintendent, and some other officers of the Poole Company about further contracts and interviewed the defendant’s vice-president at his office for the purpose of discussing the possibility of such contracts and before the negotiations between the defendant and the Poole Company relating thereto had been concluded reported these interviews to Marsh. In so doing he acted with the knowledge and authority of the. defendant. The defendant in May and August, 1917, entered into contracts with the Poole Company for machining shells. On cross-examination, the plaintiff testified that he knew that the Poole Company contemplated giving the defendant additional contracts and “assisted” in securing them; “but he alone did not secure them; he was one of the causes, but not the cause, of the defendant’s obtaining them.” At the request of the defendant the plaintiff also performed services relative to contracts other than those with the Poole Company. Although he was in San Francisco for about three months from July to September, 1917, this did not necessitate a finding that he had abandoned the contract or that his services were then required or necessary. One of the "further contracts” was made before he went away. The letter of February 8, 1917, written to the plaintiff in behalf of the defendant, in which the plaintiff was directed to “discontinue any and all activities in reference to securing work for me ^meaning Marsh, acting in behalf of the defendant],” did not cancel or attempt to cancel the agreement relating to the contract for compensation concerning the Poole contracts, nor release the defendant from liability thereunder.

The judge construed the letter of October 5, 1916, as providing that the plaintiff was not entitled to recover unless his services were the “efficient cause” of the procurement of the contracts, and defined the meaning of this term. This was sufficiently favorable to the defendant. So far as the record shows the plaintiff did not except to the construction adopted, and the jury found in his favor on the count based on the Poole contracts. The case is considered on this basis.

Under the instructions the jury, in the circumstances disclosed by the evidence, could find that the plaintiff was the efficient cause of the procurement of the future contracts even though his connection therewith was limited to services relating to the first contract. The judge said that if the plaintiff was the efficient cause in bringing the Poole Company and the defendant together so that the result of their negotiations was the second and third contracts, this was sufficient to justify a verdict for him. The language used considered in connection with the further instruction, that he did not have to show that he had any part in arranging the details of the contract or that he took part in any of the negotiations between the defendant and the Poole Company, is consistent only with this view.

While the case is close, we are of opinion that the instruction was sufficiently favorable to the defendant and that on the facts disclosed, notwithstanding the quoted testimony of the plaintiff, it was a question for the jury whether the original bringing together of the parties as herein described was an efficient cause of the future contracts. This result is supported by the letter of the defendant dated October 5, 1916, hereinbefore considered. The letter refers to the plaintiff’s services as “rendered and to be rendered” in securing contracts as a consideration for the payments provided for in future as well as then existing contracts. See Tribe v. Taylor, L. R. 1 C. P. 505. The illustration used was not harmful error in view of the conclusion here reached. The instruction that the letter of February 8, 1917, did not deprive the plaintiff of any rights he had acquired by reason of anything that he had done prior to its receipt, was correct.

The exceptions to the instructions to the jury relating to the first count are overruled; those which are to the refusal of the defendant’s fourth and fifth requests for rulings are embraced in those already considered and are disposed of by what has been said.

The substantial parts of the agreement, relating to contracts with the United States, are as follows:

“Nov. 15, 1917.

Mr. James H. Brand,

12 West 44th Street,

New York City.

Dear Sir:—

It is hereby agreed between W. T. Marsh, representing the Sterling Motor Car Co. of Brockton, Mass, and yourself that in consideration of and for services rendered and to be rendered in the assisting of- securing a contract from the United States Government for One Pound Shells complete . . . also for the assisting in the financing of the order, that the following commission is to be paid to you by the Sterling Motor Car Company, based on the size of the order as per: . . .

“It is further agreed that you are to raise cash or establish a credit based on the size of the order, as follows: . . .

“It is further agreed that the above commission is to be paid by the Sterling Motor Car Company to James H. Brand as and when the contract is signed and the cash delivered or credit established. . . .

“It is understood that the credit to be raised by you is the chief object of this agreement.

[Signed] Sterling Motor Car Co.,

W. R. Marsh, Prest.

Accepted:—

James H. Brand.”

A contract with the United States was secured for the manufacture of two million shells which necessitated the establishment of a credit of $200,000. To accomplish this the plaintiff saw Marsh in Brockton, the defendant’s place of business, and “went to several Brockton banks. The plaintiff suggested that it would be much easier and better to take the matter up with New York banks where he knew the people” than in Boston, and the matter being left in his hands he saw Mr. Rorick of Spitzer, Rorick and Company, bankers, who had offices in New York and other large cities, Mr. Rorick being his personal friend. In January Marsh came to New York and in company with the plaintiff met this banker who asked for an audited statement of the defendant’s condition, but Marsh did not promise to furnish it. In February he again came to New York and saw the plaintiff. The defendant did not furnish the requested statement and the plaintiff never established any credit with any bank or banker. Later the plaintiff advised Marsh that the best way to obtain credit was to take the matter up with the War Credits Board, of the War Department. See U. S. St. 1917, c. 79, § 5; 40 U. S. Sts. at Large, 383; Willoughby, Government Organization in War Time and After, 65. After a visit to Washington where he had made an investigation, the plaintiff wrote the defendant that the money could be arranged through that board. The defendant finally obtained advances on its contracts from that source.

It is not necessary to consider whether the evidence justified a finding that through the plaintiff’s services the War Credits Board advanced the plaintiff on account of its contracts an amount equal at least to that required by the agreement of the plaintiff with the defendant to establish credit. That question is not raised.

As to these services the judge instructed the jury, without exception on the part of the plaintiff so far as the record shows, that the plaintiff could not recover for bringing about the loan or advance from the government even if he was the efficient cause of the procurement. That question is not considered. See Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5" court="Mass." date_filed="1921-01-05" href="https://app.midpage.ai/document/noble-v-mead-morrison-manufacturing-co-6435255?utm_source=webapp" opinion_id="6435255">237 Mass. 5.

However, the fifth count was submitted to the jury with the instruction that the plaintiff had to prove that he had raised cash or established a credit based on the size of the order; that if the defendant prevented him from carrying out the agreement with Spitzer, Rorick and Company by refusing to procure an audited statement, and that if he did everything that was reasonably necessary to carry out his part of the contract, he could recover. In the course of the charge, he said: “If the plaintiff Brand did all that he reasonably could be expected to do to bring about the financing with Spitzer, Rorick and Company and obtaining the sum of $200,000, either by way of cash or credit and he was prevented from doing that by the omission on the part of the defendant and the' refusal of the defendant to do something that was reasonably necessary to carry out that trade and their refusal and neglect was unreasonable^ under the circumstances, then he has done all he could and the law does not hold him to do impossibilities and he is entitled to recover for the result of the breach of the contract on the part of the defendant in not enabling him to carry out what he said he was going to carry out if they blocked by their unreasonable actions his carrying out a reasonable scheme with a party who was ready, able and willing to advance the money or to extend and establish the credit for the defendant, then he is entitled to his pay for his commissions because he is excused by their failure to do what reasonably must be expected of them in order to make it possible for him to carry out his part of this contract. Before you find in his favor on the whole matter you must find he also assisted in procuring the government order for two million shells.”

The only exceptions relating to this which are now argued are to the failure to direct a verdict on this count for the defendant and to the “jury’s being permitted to find that the plaintiff was entitled to a commission under the fifth count by reason of his dealings with Spitzer, Rorick and Co.”

These exceptions must be sustained. The contract, although it recited that it was in part in consideration of assistance in financing the contract with the government, expressly provided that the plaintiff was to “raise cash or establish a credit” and that this was “the chief object of this agreement.” It did not contain any provision requiring the defendant to assist in so doing by furnishing a statement of its business or financial condition. There was no evidence of any wrongful act or misrepresentation on the defendant’s part, but simply the omission to supply an audited statement of condition. The jury were allowed to find for the plaintiff, if he did "all that he reasonably could be expected to do to bring about the financing with Spitzer, Rorick and Company,” and was prevented from so doing by the failure of the defendant to furnish the statement, which failure under the instructions to the jury could have been found to be unreasonable. The defendant did not agree expressly or by implication that it could or would furnish such a statement, and inasmuch as the willingness of the proposed lender was based on something which he had no right to require and the defendant was not bound to furnish, the plaintiff neither raised the cash nor established a credit, nor was prevented from so doing by the defendant. The instructions given were incorrect as the evidence did not justify the submission of this count to the jury on the ground of liability adopted by the judge. See Robinson v. Van Auken, 190 Mass. 161" court="Mass." date_filed="1906-01-04" href="https://app.midpage.ai/document/robinson-v-van-auken-6429197?utm_source=webapp" opinion_id="6429197">190 Mass. 161; Caston v. Quimby, 178 Mass. 153" court="Mass." date_filed="1901-03-01" href="https://app.midpage.ai/document/caston-v-quimby-6427388?utm_source=webapp" opinion_id="6427388">178 Mass. 153.

Exceptions relating to count 1 overruled.

Exceptions relating to count 5 sustained.