129 Ga. 479 | Ga. | 1907
(After stating the foregoing facts.)
William E. Bush sued Leonard Phinizy for commissions alleged' to be due him as a broker, for services rendered by him in selling for the defendant 445 shares of stock in the Augusta Railway & Electric Company to the Augusta-Aiken Railway & Electric Company. The jury found in favor of the plaintiff $1,-446.25, besides interest. A motion for a new trial was overruled,, and the defendant excepted. The motion contained numerous grounds, but, under the view we take, it will be unnecessary to discuss them in detail.
Under his letter to Jackson, dated November 7, 1903, Bush agreed" to give Jackson the option of purchasing the stock owned by him and represented by him as trustee, at a fixed price. For this option there was to be paid $40,000 in bonds, and, if the option was exercised and the stock paid for, the bonds should be returned, otherwise not. Both stock and bonds were to be deposited in the custody of the Georgia Bailroad Bank, or with the Equitable Security Company, as Bush should elect. Bush was not only to maké the offer for acceptance by Jackson, but, if it was accepted, he was to select the depository where the stock and bonds were to be deposited and held together in trust for the owners of the stock. This was an integral part of the contract allowing an option. In the letter from Bush to Jackson no time was specified. Hence a reasonable time might have been contemplated. But Phinizy had not only seventy shares in the “pool,” but 375 shares beside. He wrote the letter authorizing Bush to sell all of his shares “in accordance with” the letter to Jackson; and agreed that he would pay, for Bush’s service in making the trade, what the other stockholders should pay. But not being satisfied to leave the matter of time as in the other letter, he added: “This authority is good for thirty days only, to expire December 7, 1903.” The other stockholders agreed to a different character of trade, selling the stock itself, instead of an option; but Phinizy declined to do this, and he was later segregated from them, and the trade proceeded on the original basis as to him. Belatively to him and his stock, the duties incumbent on Bush, under the letters referred to above, remained, and must have been complied with in the time limited, unless it was extended, or unless compliance was prevented by the fault of Phinizy, in order to bind him to pay commissions. Bear in mind that this was not a complete sale of his stock, but a contract for an option; it might be termed a sale of an option.
Under the undisputed Svidence, the bonds were not put up as payment for the stock, nor was the depository even named, so far as disclosed, before December 1, when the time fixed expired; nor is there any evidence that Phinizy prevented the completion of the trade by that date. Unless Pliinizy waived this or extended the time, Jackson could not have compelled him to proceed by merely agreeing within the time limited that he would take the option and pay for it later. And Bush could not say that he .had completed his work and earned Ms commissions.
Again, it is said that the final contract signed varied from the primary proposal. It named the date when interest should run according to the telegram of Jackson, dated December 5, and it provided ten days after signature for depositing the stock and bonds. If Jackson was acting for the electric company, the placing of its name as the purchaser in’the formal contract, without ob
As Jackson, or his principal, agreed to trade with other sellers of stock in a separate and different way, and to deal with Phinizy alone, he could not be held responsible for results of a breach as if on a joint contract. It was either joint or several as to him. If it was joint, there was no right to turn it into a several con
It was also an erroneous statement of the defendant’s contention to say that “Mr. Phinizy says that he owes Mr. Bush absolutely nothing.” The jury may have been caused to believe that the issue was whether the plaintiff should be paid for his work $3.25 per share or nothing; while the real issue on this feature of the case was whether the measure of his compensation was to be on
The expression used in the charge, that if, within the time limited in Phinizy’s letter of November 7, Bush had sold Phinizy’s stock, “and this sale had been consummated and closed so far as Bush could close the same,” he would have earned his commissions, was subject to misinterpretation. It might have led the jury to think that, if Bush had done all he could to close the trade, he was entitled to commissions, whether or not he had succeeded, or had fulfilled the conditions of Phinizy’s letter, • and whether or not, if he failed, any fault of Phinizy’s caused the failure. Our learned brother of the circuit bench probably did not mean this, but the jury may have so understood.
We hardly think that the reference to the sale of the stock and the consummation by delivery, and payment of the “money” therefor, complained of in the 14th ground of the motion, was entirely clear, taken with the context in which it was used. It must be borne in mind that the thing which had to be done within the limit of thirty days was to close the sale or trade for an option and do what was required for that purpose under the terms of the letters of November 7. The final delivery of the stock itself to the purchaser, if the option were exercised, and the payment of the money therefor, was a matter for later consummation. Doubtless this was what the presiding judge had in view. The case is one of closely contested evidence, and, in view of some inaccuracies in the charge, we think there should be a new trial.
Other grounds of the motion need no further discussion. Except so far as indicated in this opinion, they would not require a now trial.
Judgment reversed.