Hutchinson v. Plant

• Decision Date: 25 May 1914
• Citation: 218 Mass. 148,105 N.E. 1017
• Parties: HUTCHINSON v. PLANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 148

105 N.E. 1017

HUTCHINSON v. PLANT.

Supreme Judicial Court of Massachusetts, Essex.

May 25, 1914

SYLLABUS

The defendant requested the following instructions:

(9) In determining whether Evans, Wallace, and Plant came to an agreement at their joint conference, the conference, should be treated as a whole.

(10) The evidence does not warrant a finding that Wallace and Plant ever came to an agreement for a loan.

(11) If Evans and Wallace would not invest the money until they satisfied themselves that the proposition was a safe one then they were not men able, ready, and willing to furnish the money before they had so satisfied themselves, and if they did not so satisfy themselves, the plaintiff cannot recover on the first, second, third, or fourth count of the declaration.

(12) If the proposition, if any, of Evans and Wallace was dependent on an investigation, then they were not men ready, able, and willing to furnish money before such investigation was made and if so, the plaintiff cannot recover on the first, second third, or fourth count of the declaration.

(14) The evidence does not warrant a finding that Wallace and Evans themselves were financially able and ready to furnish about $1,500,000 before October 1, 1910, and sufficient money thereafter for working capital, estimated at about $1,000,000, for this shoe machinery business.

(15) The evidence does not warrant a finding that Wallace and Evans were ready, able, and willing to agree themselves to furnish about $1,500,000 before October 1, 1910, and sufficient money thereafter for working capital, estimated at about $1,000,000, for this shoe machinery business.

(16) If Wallace and Evans did not agree to furnish the entire money themselves, but were merely to agree on the terms on which they intended to form a syndicate, to be made up of themselves and such others as could be found to agree to furnish the money, and this syndicate was never formed, then this did not constitute finding men ready, able, and willing to furnish the money, in such a sense as would of itself entitle the plaintiff to compensation.

(22) The evidence does not warrant the conclusion that Wallace or Evans ever actually formed the syndicate.

(23) If Plant and Hutchinson made a definite agreement that Plant would pay Hutchinson $50,000 in cash if the trade went through, and double that amount if the business was sold before January 1, 1911, and no other agreement as to compensation was made, either expressly or by implication, then the plaintiff cannot recover on the first, second, or fourth count of the declaration.

These instructions were refused.

COUNSEL

Henry G. Hurlburt, Grosvenor Calkins, and Carroll A. Wilson, all of Boston, for plaintiff.

Wm. H. Dunbar and Edward F. McClennen, both of Boston, for defendant.

OPINION

SHELDON, J.

The plaintiff seeks to recover a commission for having procured for the defendant from certain persons an agreement to pay to the defendant the sum of $1,600,000 for a half interest in his shoe machinery business and to provide him with additional working capital estimated at $1,000,000 at least for carrying on that business. The verdict for the plaintiff was rendered upon the first and fourth counts of his declaration, which were respectively upon a quantum meruit for the value of his services and an account annexed, in which he claimed to be entitled to $150,000 for the same services. There was evidence which warranted a finding that the plaintiff had been employed by the defendant to render these services, and the plaintiff thereupon brought the defendant into communication with two men in New York, Wallace and Evans, with whom there was considerable negotiation by both the plaintiff and the defendant. Finally, on September 8, 1910, the defendant and Wallace and Evans had a meeting at the rooms of the Central Trust Company in New York to discuss the matter. The plaintiff claims that in this interview a definite agreement was made between them, that the defendant stated the terms upon which he would take the money from Wallace and Evans and their associates (called the Central Trust Company Associates) and that Wallace and Evans agreed to furnish the money on those terms. The defendant, bowever, money on those terms. The defendant, however, interview nothing more than merely tentative negotiations, conducted with a view to ascertain whether there was any basis upon which an agreement afterwards could be reached. The plaintiff testified that two days before this interview the outlines of the proposed plan had been approved by the defendant, and that he (the plaintiff) had prepared a memorandum which read as follows:

'Wonder Worker Shoe Machinery Company, formed with a capital of $4,000,000 preferred and $6,000,000 common, Mr. Plant owning all the stock. Mr. Plant sells $2,000,000 preferred and $3,000,000 common to Central Trust Company Associates for $1,600,000. This being one-half, more or less, of Mr. Plant's investment in the shoe machinery business. The Central Trust Company Associates make this purchase only after being satisfied with investigation. The Wonder Worker Company to own everything Mr. Plant owns or controls in the shoe machinery business, including patent rights. Common stock only to have voting power; no dividends to be paid on preferred stock the first year. Mr. Plant to be president of the company and of the six directors to have three selected by and including himself.'

The plaintiff testified that this memorandum was approved by the defendant. There was much contradictory evidence, but the jury could find that at the meeting of September 8th a definite agreement was made between the defendant and Wallace and Evans, upon the basis of this memorandum and the additional stipulation that they (Wallace and Evans) should supply also working capital to the amount of $1,000,000. There was evidence also that after the conclusion of this agreement the defendant made additional demands upon Wallace and Evans, and that for this reason the matter fell through.

Upon these findings the verdict for the plaintiff was justified and these exceptions must be overruled, unless some of the specific contentions now made by the defendant shall be sustained.

1. It is true, as the defendant contends, that at the end of the interview of September 8th, there was no binding agreement between the defendant and Wallace and Evans. But this is not decisive; for as we have seen it could be found that a final and befinite agreement had been made in the course of that interview, by the defendant's statement of his terms and the acceptance of those terms by Wallace and Evans to the defendant's satisfaction. If then, after the conclusion of that agreement, the defendant made new requirements to which Wallace and Evans would not accede, and thereupon the agreement which had been reached was abandoned and the whole matter dropped, this would not affect the right which already, upon the conclusion of the agreement, had accrued to the plaintiff. Fitzpatrick v. Gilson, 176 Mass. 477-479, 57 N.E. 1000; Roche v. Smith, 176 Mass. 595, 58 N.E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345; Johnson v. Holland, 211 Mass. 363, 97 N.E. 755. The defendant's tenth request rightly was refused, and the question fairly was left to the jury under full and accurate instructions.

2. The defendant's ninth request ought not to have been given in the form in which it was put, for the reason that has been stated. But the jury were told that everything that took place during the interview or conference, as well as what took place before and afterwards, bearing upon the issue, must be considered. That was correct and it was enough.

3. The fifteenth request rightly was refused. If the defendant had given his terms to Wallace and Evans and they had accepted those terms and made a definite agreement with him to his satisfaction, as under the instructions given the jury must have found, that was enough. Having accepted the terms, as stated by the plaintiff in his behalf, adopted by himself, and acceded to by Wallace and Evans, it was no longer a question whether Wallace and Evans could themselves out of their merely individual resources furnish the necessary money, if in fact they could obtain it. If the defendant was satisfied with their responsibility and was willing to accept and in fact did accept them as sufficiently responsible for the purpose--if in other words he chose to accept Wallace and Evans and their assent to his proposition as a performance by the plaintiff of what he had employed the plaintiff to perform--the final agreement so made by him with Wallace and Evans was enough. Ward v. Cobb, 148 Mass. 518, 20 N.E. 174, 12 Am. St. Rep. 587; Monk v. Parker, 180 Mass. 246, 63 N.E. 793; Cohen v. Ames, 205 Mass. 186, 91 N.E. 212; Johnson v. Holland, 211 Mass. 363, 97 N.E. 755; Rosenthal v. Schwartz, 214 Mass. 371, 101 N.E. 1070. Upon this point also the instructions given were sufficiently favorable to the defendant.

4. The subject-matter of the sixteenth and twenty-second requests was dealt with correctly and this matter now has become immaterial, for we must take it as settled that the defendant did on September 8th conclude a definite agreement with Wallace and Evans. And, under the instructions the jury must have found also that Wallace and Evans were able, ready and willing to furnish the necessary money, and that the defendant was satisfied of this fact.

5. The eleventh and twelfth requests were mainly covered by the charge. So far as not given, they were dealt with rightly. The language of the memorandum that the associates 'make this purchase only after being satisfied with investigation' was ambiguous, and the agreement was a verbal one,...