G. W. Bradley v. Amos N. Blandin And Somerset Land Co.

• Decision Date: 08 May 1920
• Citation: G. W. Bradley v. Amos N. Blandin And Somerset Land Co., 110 A. 309, 94 Vt. 243 (Vt. 1920)
• Parties: G. W. BRADLEY v. AMOS N. BLANDIN AND SOMERSET LAND COMPANY
• Court: Vermont Supreme Court

110 A. 309

94 Vt. 243

G. W. BRADLEY v. AMOS N. BLANDIN AND SOMERSET LAND COMPANY

Supreme Court of Vermont

May 8, 1920

May Term, 1919.

ACTION OF CONTRACT to recover a commission on the sale of certain standing timber. Answer denying the contract alleged in the declaration, and setting up a general revocation of the same. Trial by jury at the June Term, 1918, Bennington County Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case.

Judgment reversed, and cause remanded.

Harvey Maurice & Whitney and Robert E. Healy for the defendants.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

The action is assumpsit to recover a commission on the sale of certain standing timber. The case has been here before, twice on questions of pleading and once after a trial on the merits. 89 Vt. 542, 95 A. 894; 91 Vt. 472, 100 A. 920; 92 Vt. 313, 104 A. 11. At the former trial a verdict was ordered for the defendants. This action was predicated upon the view that certain letters appearing in evidence constituted a valid revocation of the plaintiff's authority which, in the circumstances, barred a recovery. Reviewing the holding on plaintiff's exceptions, it was held that, as the defence stood upon the general issue, the question of revocation was not properly in the case, and that the court erred in ordering a verdict upon an issue outside the scope of the pleadings. Moreover, it was adjudged that the burden of proof on the question of revocation was on the defendants; that one of the essential elements of a valid revocation is the good faith of the principal; and that this was a question of fact, and should have been submitted to the jury. 91 Vt. 472, 100 A. 920. The retrial had on amended pleadings resulted in a verdict and judgment for the plaintiff, and the case is now here on exceptions by the defendants.

The salient facts developed at the retrial vary slightly, if at all, from those outlined in the former opinion. It appeared that the Somerset Land Company owned the equity of redemption in a tract of timber land consisting of 12,000 to 15,000 acres situated north of the Stratton turnpike, and known as the Manchester Slope or the Battenkill lands, on which the Connecticut Valley Lumber Company held a mortgage, and about 13,000 acres south of the turnpike. The Deerfield Lumber Company, of which defendant Blandin was president, owned a still larger tract also situated south of the turnpike. The combined area of these holdings was something like 45,000 acres. For reasons that are not here material it was deemed advisable to dispose of these lands together, although they were not situated for convenient operation as one tract. The outlet of the Manchester slope is the valley of the Battenkill, while the land south of the turnpike is more accessible from the valley of the Deerfield. The plaintiff was thoroughly familiar with the Manchester Slope, its location and boundaries, the timber thereon, and the routes by which the timber could be removed. He had been extensively engaged in the lumber business, had lumbered on this tract, and at one time owned a considerable portion of it. He had had negotiations with one Ostrander, representing Finch, Pruyn & Co., with reference to the purchase of a smaller tract in the vicinity, which was rejected because not large enough. He had learned that the Somerset Land Company might sell the Manchester Slope, and called it to Ostrander's attention. He asked the Land Company for a price on all of the lands that "can come this way," referring to Battenkill Valley, and after some negotiations was informed that defendant Blandin would arrange to see him with reference to the matter. Accordingly, Blandin called on the plaintiff May 25, 1910, and, as it is claimed, made the agreement on which this action is based.

Defendant Blandin testified that their negotiations related to the whole 45,000 acres, and nothing less, and that the agreement was that if the plaintiff effected the sale of the whole tract to Finch, Pruyn & Co. for $ 1,000,000, he should receive a commission of two and one-half per cent. The plaintiff's version of the agreement was this in substance: He was to introduce Ostrander to Blandin; was to show the property to him and Finch, Pruyn & Co.; was to take them over it and point out the lines and boundaries of the tract and the ways to get onto it and off from it. If Ostrander or Finch, Pruyn & Co. bought the land or any part of it, or the timber thereon or any part of it, or should be instrumental in effecting any sale to other parties, the plaintiff was to have a commission of two and one-half per cent., which Blandin bound himself personally with the Somerset Land Company to pay. Plaintiff's evidence tended to show that he fully performed his part of the agreement before the attempted revocation referred to above; and it is claimed that it further tended to show that the subsequent sale of the standing timber on the Manchester Slope to the Rich Lumber Company was in a measure influenced by Ostrander and the Finch, Pruyn & Co., and so within the scope of the contract with the plaintiff.

The plaintiff was cross-examined concerning three letters written to him by Blandin in November and December, 1911, relied upon by the defendants as evidence of a revocation of such authority as the plaintiff had in the premises. They were admitted without objection as a part of the cross-examination. It was observed when the first letter was read to the jury that this and the other letters were signed "Deerfield Lumber Company, A. N. Blandin, President." It was thereupon objected that the letters were immaterial, not being the letters of the Somerset Land Company, nor of Blandin personally. Pending an offer to show later that the land referred to in the letters included the Manchester Slope, the court postponed further reading to the jury. After some further cross-examination of the plaintiff the question of the admissibility of the letters again came up. Against the defendants' objection, to save possible error in receiving them as the evidence then stood, the court struck off their admission as exhibits "for the present at least until something more is shown about them." Following this they were severally offered as part of and in connection with the plaintiff's cross-examination, and for the time being excluded, the court saying, "you can renew your offer later, if you desire to do so." The defendants rely upon exceptions then taken, but they do not disclose reversible error. Later in the defendants' case, and after connecting evidence had been introduced, the letters were again offered as exhibits and admitted. Thus, the defendants had the full benefit of them as independent evidence. Their exclusion as part of the plaintiff's cross-examination did not violate the rule laid down in Stiles v. Estabrook, 66 Vt. 535, 538, 29 A. 961, for the letters contained nothing not admitted in the cross-examination. The plaintiff was inquired of fully as to their contents and his understanding thereof, and gave answers favorable to the defendants. Moreover, after the letters were admitted in evidence, the defendants availed themselves of an opportunity to further cross-examine the plaintiff with reference to them. Besides, it should be borne in mind that the issue of revocation was a matter of defence, which could not of right be brought forward in the plaintiff's opening case. We do not find it necessary to consider whether the court erred in the rulings excepted to, as we fail to find that the defendants were prejudiced thereby, in view of subsequent events.

After the negotiations for the sale to Finch, Pruyn & Co. fell through, the International Paper Company became a prospective customer for the Battenkill lands. Finding the later negotiations embarrassed by the fact that Finch, Pruyn & Co. had rejected the proposition after thorough examination, Ostrander was employed to conduct the dealings with the International Paper Company on a commission. Plaintiff's evidence tended to show that this employment was later enlarged, and resulted in bringing the Rich Lumber Company into the transaction. Blandin testified in his direct examination that one Richard Hanley, representing the Rich Lumber Company, called on him, said he had heard about the Battenkill lands, and opened the negotiations that resulted in the sale of the stumpage to that company. In this connection he testified that Ostrander did not make an appointment for the meeting with the Rich Lumber Company or their representatives, and that he had nothing to do with Ostrander in connection with the sale. Against the objection that it was hearsay, plaintiff was permitted to show in cross-examination that Hanley told the witness that Ostrander called his attention to the Battenkill lands and told him they were for sale. It had already appeared, and the fact was not in dispute, that Ostrander brought these lands to Hanley's attention, and gave him a description of them and what the result of the Finch, Pruyn & Co.'s investigations had been. It is too apparent to require comment that the defendants could not possibly have been harmed, if, as they claim, the statement was admitted as evidence of the fact stated. But the fair construction of the record is that the court admitted it as tending to contradict the testimony of the witness given in direct examination, where he, in effect, says that, so far as he knew, Ostrander had nothing to do with the sale to the Rich Lumber Company. This exception is without merit.

In Blandin's direct examination he was asked if there was not difficulty in respect to the disposition of the lands to the International Paper Company. The...