Wheelock v. Globe Construction Co.

| Mass. | May 15, 1907

Knowlton, O. J.

The contract on which this bill was brought is as follows:

“ Chicago, III, Oct. 14th, 1901.

“ Jacob A. Henry, Esq.,

“ Financial Agent

Globe Construction Co.

“ Dear Sir:

“ On your request I will go East and work in connection with Mr. E. S. Ellsworth in placing $1,200,000 bonds of the Des Moines, Iowa Falls & Northern R’y Co. you to pay the expenses of my trip and of my necessary stay in the East, and to allow me a net commission of one per cent on the face value of the bonds placed.

“ Yours truly,

“ Edwin D. Wheelock.

“ The above proposition accepted.

“ Globe Construction Co. by J. A. Henry,

Treasurer & Financial Agent.”

The plaintiff went to work with Ellsworth, who was the president of the railroad company, and the two continued their efforts for a considerable time with a fair prospect of success, when Ellsworth completed a contract for a sale of the bonds to the amount of $866,000 to the defendants George A. Fernald and Company. The plaintiff personally had no negotiations with Fernald and Company, and the sale was completed by Ellsworth alone. The principal question is whether the plaintiff is entitled to compensation, according to the terms of the contract, for bonds sold by either or both of them while they were working together, or only for those which he sold personally, or in the sale of which he personally participated.

We are of opinion that the contract contemplated joint efforts in a common cause, with a commission to the plaintiff upon all the bonds that were sold as a result of these efforts, without reference to which of them conducted the negotiations for a particular sale. This seems to result from the use of the words, “ work in connection with Mr. E. S. Ellsworth in placing,” with a stipulation for the payment of a commission “ on the face value of the bonds placed.” The defendants’ appeal is not well founded.

At the time of the commencement of this suit there was no “ property, right, title or interest ” of the Globe Construction Company in the hands of George A. Fernald and Company that could be affected by such a suit. There was merely an executory contract between them, whereby Fernald and Company were bound to take bonds and pay for them by a sight draft on delivery. There was no evidence to show the value of the rights of the respective parties under this agreement. The Globe Construction Company would not be entitled to anything from Fernald and Company without giving them bonds which, so far as appears, were worth the price to be paid for them. Fernald and Company were not entitled to any bonds without paying for them their full value on delivery. The case is similar to Pettibone v. Toledo, Cincinnati & St. Louis Railroad, 148 Mass. 411" court="Mass." date_filed="1889-01-05" href="https://app.midpage.ai/document/pettibone-v-toledo-cincinnati--st-louis-railroad-6423017?utm_source=webapp" opinion_id="6423017">148 Mass. 411, 419.

The fact that money belonging to the other defendant is now in the hands of Fernald and Company, and is due as the price of the bonds, is immaterial. It is a condition that has arisen independently of any rights secured by the service of process in this suit. 1

Decree affirmed.