332 Mass. 83 | Mass. | 1954
This is an action of contract to recover a broker’s commission alleged to be due the plaintiff on the sale of hammocks to Jordan Marsh Company. The case is here, after a verdict for the plaintiff, on the defendant’s exception to the denial of its motion for a directed verdict.
The plaintiff is known as a manufacturer’s representative and operates as an independent broker for different companies on a commission basis. In March, 1949, he was employed by one McArthur, the sales manager of McKinley Corporation of Baraboo, Wisconsin, to sell hammocks on commission for that corporation. It was stipulated at the trial that the defendant "had succeeded to the assets and liabilities of McKinley Corporation, and that if that corporation was liable to the plaintiff upon the evidence presented, a recovery might be had against the defendant.” It was also agreed that in 1949 McAo-thur was sales manager of McKinley Corporation; that "his authority as such extended to employing manufacturer’s representatives to sell hammocks in New England and to fixing their terms of employment”; and that in fact he did employ the plaintiff and agreed to pay him a commission.
There was evidence that following a talk with McArthur in March, 1949, at which the plaintiff’s commission was fixed at ten per cent on the sales he would make in the New England territory, he was given samples of hammock fabric and some price lists. Thereafter he interviewed buyers for Jordan Marsh, with whom he was personally friendly and to whom previously he had made sales of other lines of merchandise. No sales were made by him to Jordan Marsh in 1949 other than one hammock, which seems to have been purchased as a sample and for which the plaintiff claims no commission. He called on the Jordan Marsh buyers at intervals through 1949, and in January, 1950, arranged with one Hoye, the general merchandise manager
On December 19,1949, the plaintiff had written McArthur asking “about the line, price changes, etc.” On January 9, 1950, he again wrote, informing McArthur that Hoye was going on a midwestern trip and stating that “What Jordan’s wants again this year is a hammock to sell for $10 — they don’t want to pay more than $6 for hammock and stand. They’re supposedly in the market for 5,000 hammocks. ... I would like an answer to my letter of Dec. 19, as well as information on new prices, styles, etc.” On January 14 McArthur sent to the plaintiff the following letter: “I feel very bad about not answering your two letters sooner. . . . This year all sales east of Pittsburgh are being, handled by Sig. Jacobs and Co. of 35-37 West 23rd Street, New York, N.Y. This firm is absolutely tops in the representation of summer furniture to furniture and department stores in the east and they are putting swing-time over for us in a large way. Since they cover all of the eastern states we are sending them copies of your letters. In talking with them last evening (this is being written from Chicago) they told me that they have a man in New England at present. They will contact you when they get back to New York after the furniture and housewares shows. . . .” The plaintiff replied on January 18, "Thank you for your letter of Jan. 14th. Of course, word of your new agents covering all of the Eastern states is news to me. I do believe, however, I should have been informed of this arrangement prior to the beginning of the New Year. I have spent a good deal
When McArthur’s letter of January 14 was received by the plaintiff he had no existing contract with McKinley Corporation. He had received through McArthur merely an offer which would ripen into a contract only when he performed in accordance with its terms, that is, when he sold hammocks. This offer, being indefinite as to time, was revocable at the will of the offeror. Globe Paper Co. Inc. v. Russell Box Co. 291 Mass. 1, 10. We think that the letter of January 14 must be deemed to have been an adequate revocation of the plaintiff’s authority to act as selling agent for McKinley Corporation. See Des Rivieres v. Sullivan, 247 Mass. 443, 448; Brooks v. Gregory, 285 Mass. 197, 205. Compare Davol v. Quimby, 11 Allen, 208. The statement therein contained, that for the year 1950 Sig. Jacobs and Co. would handle all sales east of Pittsburgh, amounted to notice to the plaintiff that during 1950 he was not authorized to handle sales. It is apparent that the plaintiff understood this to be the intent of the letter. He testified that "When I received this letter, I did not feel Jacobs was in and I was out. I felt that is what the manufacturer thought but I didn’t feel that way about it.” In his reply on January 18 he referred to “your new agents” and later on February 28 wrote, "I have no argument with you upon your choosing a New York representative ■— that, of course, is your prerogative.”
There is no contention in the present case that McArthur acted in bad faith. As the plaintiff had not effected a sale at the time his authority was revoked he cannot recover a commission. The motion for a directed verdict should have been allowed.
Exceptions sustained.
Judgment for the defendant.