Masterson v. Masterson, No. 35

No. 35 | Pa. | Oct 1, 1888

Opinion,

Mr. Justice Clark :

This action was brought by Thomas Masterson against his brother, John S. Masterson, to recover commissions on the sale of one hundred and seventeen eases of leaf tobacco. The plaintiff was not at the time in business as a commission merchant, but he olaims to have acted for his brother in this behalf, under a special agreement that he should have commissions if he brought a buyer. He claims that he did bring to his brother a buyer, one Michael Kauffman; that Kauffman actually bought the tobacco, and that he is therefore entitled to commissions. The defendant denies that he had any agreement whatever with his brother for commissions, and alleges that he sold the tobacco to one Jacob Mayer, and not to Kauffman, and these were the leading questions of fact which went to the jury.

Michael Kauffman, having been called as a witness, testified that in the year 1885 he was engaged in the business of buying tobacco; that Thomas Masterson came to him on the 81 October, 1885, and told him of this lot of tobacco; that Thomas introduced him to his brother, and on November 3, in company with Mayer, he went to see it. His statement of what then occurred is as follows: “When dinner was. ready Mr. Masterson took us up and gave us dinner; before Mayer and I were done with dinner, Masterson got up and went over into his store; Mayer said to me, You had better follow him up; and I left the table and did so; Masterson said, I want to figure over this a little; I said to Masterson, There is no use in figuring, I’ll give you 7 cents through for the tobacco; Masterson said, No, I wont take it, I’ll take 7^-; then Mayer came over and asked me what I had done; I told him I hadn’t bought it yet; Mayer and I went to the house again and looked over the grades of the goods; went up again to the store-room; Mayer and I went out on the porch, then I went back to Masterson in the store-room; I said, Mr. Masterson, aint yon going to take the 7 cents ? He said, No; he said, I’ll take 7|; 1 then said to him, Mr. Masterson, I’ll tell you what I’ll do, I’ll split with you, I’ll give you 7-f ($7.12J per 100 pounds); then I went out and told Mayer he’d take $7.12j, that is the least he will take; T said, You must take it or I will; he said, Well, I’ll take it; went in and drew up the agreement.....I dealt with Masterson for the tobacco and Mayer says, Let me have the goods.....Mayer says, I’ll allow you so much commission if you will let me have the goods.....Mr. Mayer wrote up the contract, but I dealt, for the tobacco. I bought the tobacco and let Mr. Mayer have it.”

John S. Masterson, on the other hand, testifies: “He (Kauffman) came up afterwards to my place at Mastersonville; Jacob Mayer was with him; we had a talk a few minutes and went to the warehouse to see the samples of tobacco; they went through the samples; Mr. Mayer looked at the samples; while he ivas looking at the samples Kauffman called me back in the warehouse and asked me, if there would be a sale effected, whether I would allow him commissions ; I told him I would, so we got a-bargaining, I and Mr. Mayer. (Shown paper.) This is the contract we made; there were one hundred and seventeen cases; then it was done. My brother did not mention commissions at The Grape, or at any other time or place,, before the sale; he did not ask me if I would give him commissions if he brought me a purchaser; there was nothing of the kind said; two weeks or a week after, when I came to Lancaster, Mayer paid me for the tobacco; Kauffman did not buy the tobacco from me, Mayer bought it; Kauffman brought him to me.” Masterson is in the main corroborated by Mayer, who says he bought the tobacco and that Kauffman had nothing to do with it.

Now, even if it be true that Thomas Masterson did introduce Kauffman to his brother as a buyer and Kauffman went to Masterson pursuant to the arrangement alleged, if in fact he did not buy the tobacco either for himself or for Mayer, Thomas Masterson was not entitled to commissions. A broker’s commission is earned only when he procures a buyer who will comply with the terms and conditions of sale fixed by the principal. The defendant testified that he sold the tobacco to Mayer, and Mayer says that Kauffman had nothing to do with it. If this be true, in the absence of artifice or complicity of the parties, Thomas Masterson cannot be said to have found a buyer, and in that case would not he entitled to commissions.

Kauffman was the witness upon whose testimony the plaintiff relied wholly to establish a sale through his agency. A question of veracity was raised, however, between Kauffman on the one side and John S. Masterson and Mayer on the other, and what the true nature of the transaction was depended upon which theory of the case the jury might accept. In this condition of the proofs it was certainly competent for the defendant to show that the conduct of Kauffman at the time was inconsistent with his statement that he himself was the purchaser of the tobacco. As affecting the veracity of Kauffman, we cannot see why it was not proper to show that he demanded and received a commission on this sale from John S. Masterson, for that was in some sense inconsistent with the theory that he was the buyer. At all events, it was a proper matter for the consideration of the jury in determining what relation Kauffman bore to the transaction in question, and the evidence, we think, was improperly excluded.

It is a matter of no consequence that Thomas Masterson was not in business as a commission merchant or broker; in the absence of any express stipulation as to the price of Ins ¡services he was entitled to receive the usual and customary commissions, and this was for the ascertainment of the jury.

The judgment is reversed, and a venire facias de novo awarded.