112 F. 885 | 6th Cir. | 1902
This action was brought in the circuit court to recover upon a contract for compensation to the plaintiff, as agent of the defendant, Stoll, and one Shaw, in the purchase of the stock in a distillery company known as the Mattingly Company. It appears from the testimony that Stoll and Shaw were engaged in buying up distillery properties in the state of Kentucky in the year 1899; and it is alleged in the petition that a contract had been made whereby the defendant was to pay the plaintiff a certain commission for the purchase of the stock within a given time, and after the plaintiff had brought the parties together the defendant availed himself of the plaintiff’s labor in .that behalf, and purchased a majority of the stock. The argument in this case has
The question which we deem it necessary to notice arises upon the request of the defendant below for a special charge to the jury as follows:
“That if they believe from the evidence that the plaintiff, H. V". Loving, knew, or had reasonable grounds to believe, that G. B. Shaw and G. H. Stoll were desiring to purchase the stock of the Mattingly G mpany, not for themselves, but for some other person, and subsequently the said Loving accepted a contract in writing from G. B. Shaw alone, and that said Stoll was not bound to fulfill the said contract personally, the jury should find for him.”
To this request the court responded as follows:
“But the court. declines to charge you in that precise form, because there is no evidence which would authorize you to find that the plaintiff accepted a contract in writing from G. B. Shaw alone, and to the exclusion of the defendant; but the court repeats what it has already stated,-—that, before you can find anything in favor of the plaintiff, you must believe from the evidence that the defendant, either individually or on behalf of some undisclosed principal, authorized the plaintiff to negotiate for the entire capital stock of the Mattingly Company upon terms already stated.”
The defendant excepted to the refusal to give the request, and to the part of the charge above given. . '
Was the court justified in saying to the jury that there was no evidence which would authorize a finding that the plaintiff accepted a contract from Shaw alone, to the exclusion of Stoll? The plaintiff’s recovery, in the aspect in which the case was submitted to the jury, required that he should make out a contract with Stoll for the purchase of the Mattingly stock, the performance of which had been prevented by the wrongful intervention of Stoll in taking up the negotiations and concluding them after Roving had brought the parties together. - The parties were directly at issue as to whether Stoll had made such a contract. To determine the pertinency of the charge given, a brief review of the. facts which the testimony tended to, establish is necessary. It appears that Stoll and one G. B. Shaw were buying up distillery properties in Kentucky with a
In this view of the case, the judgment will be reversed, arid a new trial granted.