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

• Decision Date: 17 May 1917
• Citation: 100 A. 920,91 Vt. 472
• Parties: G.W. BRADLEY v. AMOS N. BLANDIN AND SOMERSET LAND COMPANY
• Court: Vermont Supreme Court

100 A. 920

91 Vt. 472

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

Supreme Court of Vermont

May 17, 1917

October Term, 1916.

CONTRACT. Plea, the general issue. Trial by jury at the December Term, 1915, Bennington County, Butler, J presiding. At the close of the evidence the court directed a verdict for both defendants. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

Batchelder & Bates and F. C. Archibald for plaintiff.

Clark C. Fitts and Hermon E. Eddy for defendants.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.

OPINION

POWERS

This plaintiff seeks to recover a commission on the sale of the soft-wood timber on a 12,000-acre tract of land in Bennington County called the Manchester Slope. A verdict was ordered for the defendants and the case comes here on plaintiff's exceptions thereto. So far as here need be stated, the evidence, viewed in the light most favorable to the plaintiff, fairly and reasonably tended to show the following facts:

Early in the year 1910, the plaintiff and Blandin who represented the Somerset Land Company, the owner of the land in question, met at Manchester and entered into an agreement that the defendants would pay the plaintiff a commission if he sold the Slope. The amount of this commision was not then agreed upon; but by the terms of the arrangement then entered into, it was to become payable if the plaintiff effected a sale of the land or timber, or any part thereof to George N. Ostrander, or to Finch, Pruyn & Co., whom he represented, or if a sale thereof was made through the efforts, in whole or in part, of Ostrander or his company. In the latter part of May of the same year Bradley and Blandin had another meeting at which it was agreed the commission was to be two and one-half per cent. of the purchase price. The plaintiff negotiated with Ostrander and expended time and money in the effort to sell the property to him or the company, but without success. In November and December, 1911, Blandin wrote the plaintiff several letters therein stating that "our property" and "the property" was not for sale; and there was evidence tending to show that these expressions had reference to all the lands of the Somerset Land Company, including the Manchester Slope. In the late fall of that year,--the exact time did not appear,--Blandin entered into an arrangement with Ostrander whereby the latter was to undertake to sell the property to outside parties on a commission basis. He first negotiated with the International Paper Company, but no sale resulted. He then took it up with the Rich Lumber Company, and ultimately, through Ostrander's efforts--in part, at least,--a sale of the soft-wood lumber on the tract was made to that concern at five and one-half dollars per thousand feet. It is agreed that the total amount of this sale was sixty-two and one-half millions.

The action of the court below in granting the defendant's motion for a verdict was predicated upon the view that the letters from Blandin to the plaintiff above referred to amounted to a valid revocation of the plaintiff's authority, and inasmuch as he had not then earned his commission by completing a sale, he could recover nothing.

But the question of revocation was not properly in the case. The defence stood upon the general issue, alone. The doctrine of revocation implies that a valid contract of agency has been entered into, but has, prior to its performance by the agent been terminated by the lawful act of the principal. It does not deny the contract relied upon, it avoids it. It is, therefore, an affirmative defence, and should have been specially set up in the answer. No. 90, Acts 1915, § 2. The verdict ordered, therefore, was upon an issue not within the scope of the pleadings, and although the evidence referred to was before the jury it was to be applied only as it bore on the issues...