282 F. 206 | 3rd Cir. | 1922
This suit was brought by the plaintiff, an insurance broker, to recover damages for the breach of an alleged oral contract. The real question is whether or not there was sufficient testimony as to the existence of a contract to justify submitting the case to the jury or to sustain the verdict found by it.
In his statement the plaintiff averred that Mr. R. C. Ware, secretary and treasurer of the International Glass Company of New Jersey, which later assigned all its property to the International Glass Company of Delaware, requested him to purchase 25 shares of the capital stock of the New Jersey Company, of the par value of $100 each; that if he would do so the company would appoint him its insurance broker as long as he retained the stock, “with full power and authority to take charge of and transact and place, cancel and replace all the insurance of the company, and act as the company’s insurance broker in all matters pertaining to its insurance affairs”; that the agreement between him and Mr. Ware was ratified by the company at a
The case was tried to a jury, which returned a verdict for plaintiff, and the defendant contends that: (1) There was no evidence that the. contract averred in the statement had been entered into by the plaintiff and the New Jersey Company; and (2) no breach of the contract was shown.
In proof of the contract plaintiff produced testimony tending to show that he had been the insurance broker of the New Jersey Company for two years. Mr. Ware, his friend, told him that, so long as he was secretary and treasurer of the company, he, the plaintiff, would probably retain the insurance as broker of the company, but that the purchase by him of 25 shares of stock would make his position “certain” and he would continue to have the insurance account with the company. On being asked if the directors would approve the agreement, Mr. Ware said he would find out. Later Mr. Ware told him, in the presence of Mr. Boaul Fredericks, general manager of the company, that “Mr. Fredericks would 'agree to such an agreement.” After the meeting with the plaintiff and Fredericks, Mr. Ware reported to the board of directors that the “deal” with the plaintiff had been consummated; that Mr. Krouse had agreed to purchase $2,500 worth of stock of the company, and that he had arranged to carry the insurance of the company with him as long as he was satisfactory.
Thereafter the arrangement between Mr. Ware and the plaintiff was brought up at a formal meeting of the board of directors some time between July 18 and October 11, 1917, but no record of any meeting between those dates could be found in the minute book. There was, however, a page of the minute book missing between the record of the meeting of July 18 and October 11, 1917. The president of the company, however, testifying as to the report of the arrangement between Messrs. Ware and Krouse, said “that [the agreement] was ratified [by the board of directors] and these minutes should show it,” but that the minute of the meeting had been removed from the book. In accordance with the ratified agreement, plaintiff purchased 25 shares of the stock of the New Jersey Company, and soon thereafter Mr.. Ware wrote the general manager of the company to place all insurance through the plaintiff. This was done until some time after November, 1919. Mr. L. H. Wood, president of the company succeeding Mr. Mulford, testified that after the controversy arose there was talk among the members of the board of directors that there was a contract between the plaintiff and the company.
“But when the question is whether parties, by oral communication and by their acts, have entered into a contract, the conclusion to be deduced is not one of law, but of fact, and must be determined as such. The contract itself, if there is one, is a fact, to be arrived at on a consideration of other facts, and, if there is any evidence tending to prove it, must be found like any other fact, by a jury, or by the court acting in the place of a jury.”
In thus violating its assumed obligations, the defendant was liable to damages, and the judgment of the District Court is affirmed.
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