Forbes v. Gordon & Gerber, Inc.
Decision Date | 02 July 1937 |
Citation | 9 N.E.2d 416,298 Mass. 91 |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Parties | FORBES v. GORDON & GERBER, Inc. |
OPINION TEXT STARTS HERE
Action of contract by Charles R. Forbes against Gordon & Gerber, Inc., wherein trial judge found for plaintiff in the sum of $4,125. The Appellate Division dismissed a report and defendant appeals.
Reversed, with directions.Appeal from Municipal Court of Boston, Appellate Division; Adlow, judge.
Lee M. Friedman and F. L. Kozol, both Boston, for defendant.
E. M. Dangel, L. E. Sherry, and S. Andelman, all of Boston, for plaintiff.
This is an action by an agent for a commission of 10 per cent. on the purchase for the defendant of a lot of railroad rails. There was a written agreement between the parties, dated December 11, 1935. By it the plaintiff was employed ‘for the purpose of the purchase and/or sale of materials dealt in by the [defendant] corporation, at such prices, terms and conditions as may be determined and decided upon by the corporation.’ The defendant agreed, ‘in its discretion,’ to make reasonable bids upon such materials as might be brought to its attention by the plaintiff, and ‘in its discretion’ to fulfil ‘such requirements as may be necessary to qualify such bids.’ The plaintiff was to receive an amount equal to half the net profits made by the defendant upon sales and purchases in which the plaintiff should be concerned. The contract further provided:
There was evidence of the following facts. The plaintiff discovered that the Southern Railway Company was asking for bids upon steel rails which it was selling, as scrap, free on board at various points on its line. Payment was expected ‘at the time shipping directions are furnished.’ By authority of the defendant, the plaintiff bid for a large quantity of rails $13.75 a ton F. O. B. Pittsburgh, which apparently was not on the line of the Southern Railway Company. That company, however, issued a written ‘award’ to the defendant, dated January 17, 1936, in which the price was stated as ‘13.75 Pittsburgh or 11.00 So. Ry. tracks' and the terms as ‘Delivered, F. O. B. cars As shown above.’ The ‘award’ provided that ‘this award is subject to cancellation at our option if shipping directions, or cash payment, are not received within ten (10) days from its date.’ On January 20, 1936, the defendant told the plaintiff by telephone that it wished the rails delivered F. O. B. Pinner's Point, Virginia, a point on the line of the Southern Railway Company, at $11 a ton.
On January 24, 1936, however, the defendant wrote to one Finard, who apparently was associated with the plaintiff, complaining that the defendant faced a loss on the bid that had been made. The defendant did not send the purchase price nor shping instructions to the Southern Railway Company or the plaintiff. The Southern Railway Company cancelled the ‘award’ on February 6, 1936, and the transaction was at an end. There was no delivery, no payment, and of course no profit.
The judge found for the plaintiff. He found ‘that the transaction was completed in every respect except that the defendant refused to give shipping instructions to the seller or to make payment for rails and that wilful refusal of the defendant prevented completion of the transaction.’ The Appellate Division dismissed a report, and the defendant appealed to this court.
What the plaintiff sought in this action was not half the profits, for there were none, nor damages for breach of an agreement by the defendant to make good its bid, but the 10 per cent. of the amount of ‘any * * * purchase’ which was payable ‘at the time that such transaction is completed’ or, as otherwise stated in the written agreement, ‘as soon as the purchase price for any materials purchased by the corporation shall be paid for by it.’
The paragraph of the written agreement that comes nearest to contemplating what happened in this case is the one numbered (2), by which the defendant agrees to ‘make reasonable bids' and to ‘fulfil such requirements as may be necessary to qualify such bids,’ its agreement being restricted, however, in each instance by the words ‘in its discretion.’ The only remedy of the plaintiff for the failure of the defendant to bid on goods called to its attention by the plaintiff was to terminate the agreement at his option. We need not consider whether, as the Appellate Division thought, the defendant reserved discretion only as to the making and preliminary qualification of bids, and by inference agreed absolutely to make good its bids once made and qualified. This action is not one for damages for breach of such an agreement.
This case turns upon the construction of paragraph numbered (4). It is true that the words ‘sale’ and ‘purchase’ may mean contract to sell or purchase. Walker v. Russell, 240 Mass. 386, 389, 390, 134 N.E. 388;Buono v. Cody, 251 Mass. 286, 290, 146 N.E. 703. But in construing those words, and the accompanying expressions making the 10 per cent. ‘of the amount of any * * * purchase’ payable ‘at the time that such transaction is completed’ and ‘as soon as the purchase price for any materials purchased by the corporation shall be paid for by it,’ we must keep in mind the insistence of the defendant that its agreement to make and qualify its bids was subject to ‘its discretion,’ and the fact that in the end the plaintiff was to benefit only by receiving a share of the profit resulting from his transactions as a whole. The case is unlike Canton v. Thomas, 264 Mass. 457, 162 N.E. 769,...
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Forbes v. Gordon & Gerber
...298 Mass. 91 9 N.E.2d 416 CHARLES R. FORBES v. GORDON & GERBER, INC. Supreme Judicial Court of Massachusetts, Suffolk.July 2, 1937 ... April 13, 1937 ... Present: RUGG, C ... J., FIELD, DONAHUE, ... LUMMUS, & QUA, JJ ... Contract, ... Construction. Broker, Commission. Practice, Civil, Requests, ... ...
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...that the evidence warranted a finding for the plaintiff. Commonwealth v. Hull, 296 Mass. 327, 329, 5 N.E.2d 565; Forbes v. Gordon & Gerber, Inc., 298 Mass. 91, 95, 9 N.E.2d 416. There has, however, been no compliance with Rule 27 of the District Courts (1940), which requires the grounds of ......
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...filed in the case reveals that the point was presented in proper form by a request for a ruling of law. See Forbes v. Gordon & Gerber, Inc., 298 Mass. 91, 94, 9 N.E.2d 416 (1937).4 Kydd also argues that the court's failure to give her as much notice as the other parties to the case may have......