Notman v. Galveston Steamship Co.

122 N.Y.S. 598 | N.Y. App. Div. | 1910

Burr, J.:

Plaintiffs are shipbrokers, doing business under the firm name of J. W. Elwell & Co. The complaint alleges, and' the answer failing to deny admits, that on or about December 30, 1905, they, acting as such brokers* concluded in behalf of defendant negotiations for a charter of the steamship Galveston to one A. B. Wolvin, and on that day a charter party was executed. This charter party specitied the. time of the hiring to lie “.for three months, option of three more months,” and also contained a .clause: “ 14. That the Charterers shall have the option of continuing this charter for a further period of three months as above, to be declared on or before March 15th,' time to commence expiration of present charter.” Still another clause contained the following words: “26. A commission of five per cent upon the gross amount of this charter .payable as earned by the steamship and owners, due to Jas. W., Elwell & Co., upon "the signing hereof, steamship lost or not lost, and also upon any5 continuation or extension of this charter.” ■ There was some conflict of evidence upon the point whether the option referred1 to was exercised or not, So far as plaintiffs are concerned it is immaterial, since they base their claim upon the- fact that oh or about March. 13, 190.6, another agreement .was executed between defendant arid said Wolvin, by which the -said steamship was. chartered for a year, and which agreement they claim was, a continuation or extension of the original charter party. This' action' was ‘brought to recover.commissions upon the amount of hire received by defendant under the latter agreement. The court directed a verdict, for plaintiffs, but thereafter granted defendant’s motion to set it aside and for a new trial, and from the order then entered tbis-appeal1 is taken. -

We think that the order' is right and should be affirmed. Even if. the charter party of March 13, 1906, was an extension of'that of December 30,1905, there is no evidence of any valid contract to .pay plaintiffs a. commission in connection with such extension, The-complaint alleges that the execution of the original agreement was theresu’lt of plaintiffs’ efforts, and this being admitted, these would constitute a sufficient consideration for' defendant’s promise, to pay commissions ’on the hire reserved'thereby, or, in the absence of such promise, would support an action oti quantum meruit if such . services were rendered with defendant’s knowledge and followed . by an acceptance of-the benefits thereof. But the- original charter party itself was not an agreement-to pay such commissions,, for .plaintiffs were not parties to it. The most .that could be said respecting it. is that" it is some evidence by way of admission, respecting such an agreement. Much less could it be deemed an agreement to pay commissions during any additional period: Plaintiffs have not only failed to plead the existence of such an agreement, but if they had pleaded it, the promise to pay would be unsupported by any consideration, since plaintiffs were under no obligations to do anything to bring about any extension of the original charter party, and if the agreement of March 13, 1906, could be deemed such an extension, the evidence establishes without contradiction that plaintiffs had nothing whatever to do with the negotiation or the execution of it. But if a valid contract with plaintiffs as to such extension had been pleaded and proved, we think that the latter charter party was not a continuation or extension of the former one. It is true that the subject-matter was the same, and that the amount of hire was fixed at the same sum per month, but in several other essential particulars the terms and conditions of the hiring differed, and the minds of the parties did not meet as to those matters until after some considerable negotiation, which was had -between the parties directly and not through the acts of plaintiffs.

The order should be affirmed, with costs.

HiesgHbeeg, P. J., Rioh arid Oare, JJ., concurred.

. Order affirmed, with costs.