Creveling v. Wood & Leman

• Decision Date: 19 June 1880
• Citation: 95 Pa. 152
• Parties: Creveling <I>versus</I> Wood & Leman.
• Court: Pennsylvania Supreme Court

Page 152

95 Pa. 152

Creveling versus Wood & Leman.

Supreme Court of Pennsylvania.

June 11, 1880.

June 19, 1880.

June 11th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Montour county: Of May Term 1880, No. 44.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Grier & Hinckley and Joshua W. Comly, for plaintiff in error.—Wood & Leman were simply agents to sell iron for Creveling. He designated them as agents in his letter. They are not governed by the law of real estate brokers. The letter shows that the understanding of the contract was that commissions were only to be paid for iron sold and paid for. They were to receive commissions on actual sales, not on contracts for sales. A sale in law is a contract by which the property is passed. Here only 646 tons were delivered.

Edward H. Baldy & Son, for defendants in error.—Wood & Leman were iron brokers, and when they had brought the parties together and found for Creveling a purchaser for 4500 tons of rails, and Creveling had sold the same, their duties were at an end, and they were entitled to their commissions on the 4500 tons: Story on Agency, sect. 28; 2 Kent's Com. 622, 4th ed.; Keys v. Johnston, 18 P. F. Smith 42; Inslee v. Jones, Bright. Rep. 78. It was not intended that Wood & Leman should join the duties of factors with that of brokers. They were employed as brokers only. They were employed to sell, not to deliver, or do any other act in reference to the execution of the contract. When they had made a sale and disclosed their principal, their whole duty was done. When the principal is disclosed, the broker is no longer authorized to alter the terms of the contract on the ground that the moment a sale is made he is functus officio; Long on Sales 398.

Mr. Justice PAXSON delivered the opinion of the court, June 19th 1880.

The radical error of this case is to be found in that portion of the charge embraced in the first assignment of error, and involves the construction of the letter of the defendant below to the plaintiffs under date of July 19th 1877. The plaintiffs having accepted the terms of said letter by an endorsement thereon, we must look to it as embodying the agreement of the parties. The effect of it was to make the plaintiffs "selling agents" for the defendant for the sale of his "railroad iron, merchant and muck bar for New York and eastern markets," upon certain conditions therein named, and for an agreed compensation "on all sales." Under this appointment the plaintiffs alleged that they had sold forty-five hundred tons of iron for the defendant to the Covington, Columbus & Black Hills Railroad Company. A contract in writing between the defendant and the railroad company was prepared for the sale of said iron, the due execution of which was, however, denied by the defendant. This point we regard as unimportant. The defendant delivered six hundred and forty-six tons of iron to the company, when a further compliance with the contract on his part was prevented by the inability of the company to make payments. The plaintiffs claimed a right to recover commissions on the whole forty-five hundred tons; the defendant denied any liability beyond the six hundred and forty-six tons.

The learned judge instructed the jury that the right of the plaintiffs to compensation did not depend upon the quantity of railroad iron delivered, but upon the amount which was sold through the agency of the plaintiffs; that if the plaintiffs brought the defendant and the purchaser together, and "there was an act of sale or purchase passing from one to the other, the one...