248 Mass. 450 | Mass. | 1924
This is an action brought to recover a commission on the sale of certain leather by the défendant to Dungan, Hood and Company, Inc., of Philadelphia. The plaintiff in the spring of 1919 was a leather salesman. The defendant is a resident of Sweden, and was a shoe manufacturer and dealer in leather there. Dungan, Hood and Company, Inc., were manufacturers of and dealers in leather. About March 1, 1919, the plaintiff, who was in Sweden, saw the defendant and endeavored to sell him leather. As the result of a conversation between them at that time the defendant agreed to write the plaintiff confirming the talk, and forward details as to his (the defendant’s) leather in America; and by letter written March 10, 1919, in the last sentence thereof, the defendant wrote: “In case you can
Dungan, Hood and Company, Inc., will hereafter be referred to as the company. The leather which was so sold by the defendant to the company was originally bought by the defendant from the company and still held by the latter subject to the disposition of the former. They had been doing business with each other for many years, and the plaintiff did not, and could not, contend [hat he was entitled to a commission for having introduced the company to the defendant as a possible customer; his contention is that “ it was a result of the plaintiff’s activity, intervention, and interviews with the purchaser and his letter or letters to it,” that the sale was finally consummated at a price satisfactory to the defendant.
• The record shows that the negotiations which led up to the sale began January 29,1919, when the defendant wrote the company expressing a view that prices were going down. On March 21, 1919, the company cabled in reply, “ Letter January twenty ninth received. If you believe glazed kid going lower we will buy yours here paying invoice prices.” Thereafter a series of letters and cablegrams passed between them, and on May 16, 1919, the company by cable offered to buy on terms which the defendant accepted, afterwards confirming his acceptance by letter of May 21, 1919. All these communications on the part of the company were carried on by its Philadelphia office, and especially by its treasurer, one Vaughan. He testified, in substance, that the company throughout the negotiations was governed as to its attitude by the condition of the market and that “ the
The plaintiff testified that he had nothing to do with the sale of the leather apart from the talk with one Carman, the manager of the company’s office in Boston, and the letters in evidence. His recital of his entire dealings with the company is as follows: On his return to the United States from Sweden he called on Carman on April 14, and tried to interest him in the leather. Carman agreed to take the matter up with the “ factory,” and at a later date he said that he had heard from the factory, and that “ they were apparently interested and were considering it.” Later the plaintiff asked Carman if the latter “ thought he had
The plaintiff testified that he wrote two other letters to the company; none of the three was answered, and Vaughan, the treasurer of the company, testified that so far as he knew the letter of May 14 was never received. This letter was the only one which could have been received before the successful offer was made to the defendant on May 16, and it is the only communication addressed by the plaintiff to the Philadelphia office of the company which contained any effort to sell the leather to the company. There is no direct evidence that it was ever received, and there is no evidence whatever that it was received before May 16, or that it came to the attention of Vaughan before that time or afterwards.
There is no evidence that Carman had authority to bind the company in any manner respecting the purchase of the leather. Vaughan denied that Carman ever communicated with him concerning Rich; and Carman testified that the question of the company buying the leather was never discussed between him and the plaintiff. Against the testimony of these witnesses is the plaintiff’s testimony which he is entitled to have taken as true for the purposes of the present case. But that testimony shows only what Carman said to him and what he said to Carman, and furnishes no affirmative proof whatever that anything he may have done in attempting to make a sale ever came to the knowledge of Vaughan or to any other person concerned in the sale, nor that it in any way affected the conduct of the company or any one authorized to act for it. Upon the entire evidence it is plain that the persons acting on behalf of the company who were instrumental in bringing about the purchase, either never heard of the plaintiff as a party
Upon the evidence most favorable to the plaintiff it could not properly be found that his efforts were the operating, predominating and efficient cause of the sale. Accordingly the defendant’s first request for a ruling that the plaintiff was not entitled to recover should have been given. As that ruling should have been given the other exceptions need not be considered.
Exceptions sustained.