Noble v. Mead-Morrison Mfg. Co.

Decision Date07 January 1921
Citation129 N.E. 669,237 Mass. 5
PartiesNOBLE v. MEAD-MORRISON MFG. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Action by William M. Noble against the Mead-Morrison Manufacturing Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.Hugh D. McLellan and Charles F. Lovejoy, both of Boston, for plaintiff.

John L. Hall, Stuart C. Rand, and Archibald MacLeish, all of Boston, for defendant.

RUGG, C. J.

This is an action to recover a commission, which the plaintiff alleges to be due under an express oral contract with the defendant to pay him five per cent. for his services in connection with its obtaining from the British government a contract to make 100,000 six-inch shells at $18 each. Confessedly the defendant under date of September 20, 1915, made such a contract with the British government. The defendant pleaded a general denial and illegality of the contract. It filed specifications of illegality to the effect that the contract contemplated that the plaintiff would exercise ‘improper influences'-‘his supposed personal influence’-upon the agents of foreign governments to induce them to give to the defendant a contract or contracts, and that the natural tendency of the contract was to induce the plaintiff to use improper and personal influences upon agents of foreign governments.

There is no specification of illegality on the ground of maintenance or champerty. See Blaisdell v. Ahern, 144 Mass. 393, 11 N. E. 681,59 Am. Rep. 99;Hadlock v. Brooks, 178 Mass. 425, 59 N. E. 1009.

[1] When the case was reached for trial the defendant filed a motion, supported by affidavits, for postponement on the ground of absence from the country of material witnesses. the ground of maintenance or champery. See Blasidell v. Ahern, 144 Mass. 393, 11 N. affidavits. Rule 25, Superior Court Rules of 1915. The refusal to grant a postponement presents no question of law. It was for the court to determine whether there had been due diligence in trying to secure the attendance of the witnesses or to procure their depositions or whether for any reason justice required a postponement. To this end the rule of court permits the introduction of evidence. No evidence aside from the affidavits appears in the record, although it is recited that there was a hearing. Ordinarily the granting of a continuance is for the presiding judge alone. Pickering v. Reynolds, 111 Mass. 83;Kittredge v. Russell, 114 Mass. 67;Sullings v. Ginn, 131 Mass. 479;Soper v. Manning, 158 Mass. 381, 33 N. E. 516. There is nothing in the case at bar to indicate abuse of discretion or arbitrariness in requiring the trial to go on.

The defendant's motion for directed verdict filed at the close of the evidence was denied. In answer to six questions the jury found in substance (1) that the contract between the defendant and the British government was obtained as a result of the services rendered by the plaintiff and those associated with him, (2) that such services were effective in enabling the defendant to obtain that contract, (3) that such services were rendered at the request of or with the knowledge and consent of the defendant, (4) that the defendant agreed with the plaintiff to pay a sum equal to five per cent. upon the gross amount of the contract to the plaintiff for his services, provided they resulted in its obtaining a munitions contract, (5) that the agreement between the plaintiff and defendant was not in whole or in part for the exercise of personal influence by the plaintiff upon the agents of the British government authorized to award contracts, (6) that the agreement between the plaintiff and defendant was for making negotiations as attorney or agent for furnishing information and proper arguments to enable and induce officials of the British government to act for its best interests.

There was evidence tending to show that as early as May, 1915, the plaintiff had a talk with Mr. Martin, the vice president and general manager of the defendant (whose authority in the premises is not questioned and on the evidence could not well be assailed), concerning the manufacture of munitions by it, during which he said in substance that the defendant was looking for business and ready to make munitions, but he ‘did not care to enter into any arrangement about it; if anybody brought in any business he would pay for it.’ There were subsequent communications between the parties, and on July 30 Mr. Martin and one Boutwell met the plaintiff at his office, where after some discussion as to war contracts and a proposed meeting the next day in New York between the plaintiff and a General Pease of the British government, this conversation occurred (according to the testimony of the plaintiff):

‘I said, ‘I have told Mr. Boutwell that I will not present the name of any concern to General Pease unless I have a definite agreement as to my compensation because I want no dispute about it afterwards.’ And Martin said, ‘Boutwell says you have got to have five per cent.,’ and I said, ‘Yes, that is so.’ He said, ‘Well, that will be satisfactory provided we get an order and don't have to pay anybody else.’'

And the plaintiff then agreed that he would settle with others associated with him and would protect the defendant from their claims. Further conversation at the same interview related in part to the price at which the defendant would manufacture shells, wherein Mr. Martin said:

‘I don't want you to take the business end

‘I don't want you to talk the business end I want is to get in touch with some man who can talk for the Government and I will do the talking.’

Mr. Boutwell testified that he told Mr. Martin, before going to the plaintiff's office, that he thought the plaintiff could get some contracts ‘with a commission of five per cent. that Mr. Noble wanted,’ and that when the three were together in the plaintiff's office ‘this matter of five per cent. was brought up, and if I remember correctly was agreed to. * * * Mr. Martin said that I had mentioned that he wanted five per cent. to get the business. * * * Well, he [Mr. Noble] said so.’ Mr. Martin in his testimony denied that such conversation took place, but said that the plaintiff was to represent the defendant as attorney.

[2][3] There was evidence sufficiently explicit to support a finding that a contract actually was made in substance as testified by the plaintiff. The subsequent conduct and correspondence between the parties, and assertions in letters from Mr. Martin to the plaintiff (as to the force of which, see Huntress v. Hanley, 195 Mass. 236, 80 N. E. 946;Callahan v. Goldman, 216 Mass. 234, 103 N. E. 687;Sargent v. Lord, 232 Mass. 585, 122 N. E. 761), all were for the consideration of the jury. It cannot be said that as matter of law they overcame the direct and positive testimony of the plaintiff.

The testimony offered in behalf of the plaintiff was sufficiently certain in its terms to constitute a contract. So far as not precisely expressed in words, it fairly implied that the plaintiff should use rational efforts to the end that the defendant might munitions and that the defendants should muntions and that the defendants should pay him, within a reasonable time thereafter, the stated commission. The words used do not specify the sum on which the percentage is to be computed. The several words descriptive of the thing to which the percentage referred were ‘order,’ ‘contract,’ ‘business.’ It fairly is inferable from the context in which these words were used that a commission to be paid by a percentage on ‘an order’ for the manufacture of shells is to be reckoned on the gross price of the order, contract or business. If it has been intended to narrow the subject of percentage to the profit arising from the contract, to the cost of the goods, to the gross price of goods actually manufactured and delivered, or to any other more restricted basis, that thought naturally would have been expressed in apt language. The contract was not vague, uncertain or meaningless. The case at bar is distinguishable from decisions like Cheney Bigelow Wire Works v. Sorrell, 142 Mass. 442, 8 N. E. 332, and Marble v. Standard Oil Co., 169 Mass. 553, 48 N. E. 783.It was sufficiently definite to warrant recovery. The defendant's request for rulings, numbered 7, to 13, were denied rightly. Noble v. Joseph Burnett Co., 208 Mass. 75, 94 N. E. 289.

The contract was oral and there was sharply conflicting testimony as to its terms. The ascertainment of the contract as actually made must be left to the jury. Gassett v. Glazier, 165 Mass. 473, 480, 43 N. E. 193;Phenix Nerve Beverage Co. v. Dennis & Lovejoy Wharf & Warehouse Co., 189 Mass. 82, 75 N. E. 258.

The instructions of the court were adequate touching the point that in order that a contract could be found to have been made, the minds of the parties must have come into accord about the subject, and their understanding of its essential terms must be mutual. The principle is plain. Dzuris v. Pierce, 216 Mass. 132, 103 N. E. 296. To say that, in order that there might be a contract, the parties must ‘get together’ and that there must be ‘some agreement between them,’ and that the plaintiff must prove ‘some agreement * * * on the part of the defendant to pay him,’ cannot under all the circumstances and in the light of the rest of the charge have left the jury in any rational doubt as to the exact point in issue and the burden of proof resting on the plaintiff. The defendant's twelfth request for ruling was covered adequately by the charge.

The jury were justified in finding on all the evidence that the plaintiff and his associates were the efficient cause in the procurement by the defendant of its contract with the British government. Summarily stated, there was testimony to the effect that Mr. Martin had tried and failed to secure a contract for shells; that he had said ...

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