163 F. 249 | 4th Cir. | 1908
These two cases grew out of the same transaction. By consent of counsel the second was determined upon the testimony adduced in the first, and they may very properly be disposed of together here.
On January 10, 1906, T. H. Barrett, L. W. Thorpe, V. D. Thorpe, G. P. Vick, and J. G. Majette were associated together as partners under the firm name of the Virginia-Caroiina Dumber Company, and as such were the owners of a lumber plant and certain timber rights, situate in Nash and Franklin counties, N. C. On that day A. ,R. Smith went to Mr. Barrett, the president of the company, and informed him that he believed he could effect a sale of the property through G. Ered Johnson. Thereupon two conditional contracts or options were executed by Barrett, as president, on behalf of the company; the one granting to Johnson, or his assigns, “for a period of 60 consecutive days (said 60 days to commence at the time we consent to let you, or your assigns, commence to examine the property hereinafter mentioned) the privilege to, at any price not less than $145,000,” sell the said plant and timber holdings. This option to sell then provides for the terms of payment, if sale be made, and for the sale of the logs and lumber on the yards in such event, and then stipulates:
“We hereby agree to quote any price you may name (and no price except that which you name) for the aforesaid property to any prospective purchaser*250 you may bring us, provided that price is not less than $145,000, and we fu'rther agree that we will not sell to him, directly or indirectly, at any time, the-aforesaid property without your consent.” .
The further provision is then made that Johnson was to have all over $145,000 for which he might sell the property, to be added by him in the sale to the cash payment required. The second, contract was with Smith, and simply provided that, if a sale of the property was made by Johnson under the conditions of the writing just referred: to, the company would pay him (Smith) out of the cash payment $5,000.
On March 24, 1906, Johnson by writing gave to the Mason-Miranda Company of Norfolk, Va., the privilege of selling the property upon conditions substantially the same as those contained in his option to sell from the lumber company, limiting, however, such privilege to April 15, 1906, unless the Mason-Miranda Company should have a prospective purchaser examining the property by that time. Johnson notified Barrett, president of the lumber company, that the Mason-Miranda people were the ones through whom he hoped to sell the property. On April 7th following the Mason-Miranda Company gave to Frank J. Saxe, a New York broker, an option substantially in the terms of theirs from Johnson, and Saxe secured Tremaine tamalee an examination of the property with a view to purchasing it. This examination by Tremaine commenced on April 12, 1906, as Saxe by telegram notified the Mason-Miranda Company, and it was completed before May 7, 1906; for on that day Saxe notified the Mason-Miranda Company that Tremaine absolutely declined to pay the $165,-000 asked for the property and Saxe surrendered his option. On May 10th, in reply to a letter from Miranda, Saxe states Tremaine refused to give more than $140,000. The Mason-Miranda Company notified Barrett, president of the lumber company, of this state of affairs. Subsequently Saxe notified Barrett that Tremaine and his parties refused absolutely to deal at any price through middlemen, and that he had sent them direct to him, to see if they could negotiate. Of this the Mason-Miranda Company was notified by Barrett. Such negotiation was had between Tremaine, and Barrett that the property was sold to Montgomery for $135,000; Barrett generously allowing $4,-000 of this sum to be paid to Saxe and $1,000 to the Mason-Miranda Company for their services, with which they expressed themselves satisfied.
Thereupon Johnson instituted his action of assumpsit against the defendant lumber company, claiming 10 per centum of the gross sale price, or $13,500, and Smith instituted a like action, claiming the $5,000 provided for in his contract with its president, Barrett. Upon trial the court below directed the juries in each case to find for the defendant company, and judgments were rendered for the defendant in accordance with such verdicts. To these judgments these writs of error have been taken to this court.
It seems to us clear that the mere statement of facts shows that the action of the court below was absolutely right in each case. The original so-called option by Barrett on behalf of the defendant gave to Johnson only the right or privilege to secure a purchaser and sell
The judgments in these cases must be affirmed, with costs in each ease in favor of the defendant.
Affirmed.