210 F. 885 | 8th Cir. | 1914
The opinion in this case, which may be found in 206 Fed. 889, 124 C. C. A. 549, states the facts which condition the decision. The motion for a rehearing insists that the plaintiff should have been entitled to go to the jury because (1) it is an implied term of an ordinary contract between a broker and his principal that if the
Conceding the law to be as stated, there are nevertheless reasons which seem to us sound why the evidence in this case was insufficient to sustain a verdict in favor of this broker.. In the first place his agreement with the defendant was not the ordinary broker’s contract for a commission on the proposed sale or contract, but it was a unique agreement, in that it expressly provided in writing in the defendant’s letter of September 21, 1911, when and on what conditions only the plaintiff’s commission should be earned and paid.
. “We hereby agree to give you.” reads the accepted offer of the defendant, “in event of our making a sale, or sales contract, with M. W. Savage, of Minneapolis, at a price of thirty-five ($35) dollars per acre, a commission of five (5%) per cent., and a further sum of twenty-five thousand ($25,000) dollars, conditioned, however, upon the fulfillment of the contract by Mr. Savage; it being hereby agreed that the commission is not earned, due, or payable except upon the fulfillment .of the contract by Mr. Savage. When, we have received the net sum of three hundred thousand ($300,000) dollars in cash from Mr. Savage’s sales, there is earned, and will be paid to you, the sum of twenty thousand ($20,000) dollars, and a like sum will be earned and paid when a further sum of three hundred thousand ($300,000) dollars has been received by us, and so on, until you have received your full commission.”
The purpose of the second condition in this contract was not merely to fix the time of payment of the commission to be earned; its chief object was to fix the amount of the commission that would be earned under various circumstances and thereby the damages which the plaintiff could recover if the defendant made the contract with Savage, but the latter did not completely perform it. The proposed agreement with Ravage related to the sales of 108,000 acres of land for more than $3,000,000, to numerous separate purchasers of separate tracts, to be made during many months of time. Without this condition the pía in - tiff’s damages would have been uncertain and speculative in case of Savage’s partial failure to perform the contract, for who could have determined in such a contingency how many acres he would have sold if he had not failed to sell. It was to avoid this uncertainty that the defendant expressly conditioned its liability to the plaintiff for a commission upon the fulfillment by Savage of a sale or sales contract with him, and the receipt by the defendant from Savage’s sales of the net sums in cash specified in the contract, conditions of the fulfillment bf which there is no evidence in this record.
• Moreover, a second examination and consideration in the light of