Livingston v. George McArthur & Sons, Inc.

• Citation: 123 N.E.2d 379,332 Mass. 83
• Parties: Ralph E. LIVINGSTON v. GEORGE McARTHUR AND SONS, Inc.
• Decision Date: 21 December 1954
• Court: United States State Supreme Judicial Court of Massachusetts

Page 379

123 N.E.2d 379

332 Mass. 83

Ralph E. LIVINGSTON v. GEORGE McARTHUR AND SONS, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 5, 1954.

Decided Dec. 21, 1954.

Erland B. Cook, Boston, for plaintiff.

Edward C. Park, Boston, for defendant.

Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

This is an action of contract to recover a broker's commission alleged to be due the plaintiff on the sale of hammocks to Jordan March Company. The case is here, after a verdict for the plaintiff, on the defendant's exception to the denial of its motion for a directed verdict.

The plaintiff is known as a manufacturer's representative and operates as anindependent broker for different companies on a commission basis. In March, 1949, he was employed by one McArthur, the sales manager of McKinley Corporation of Baraboo, Wisconsin, to sell hammocks on commission for that corporation. It was stipulated at the trial that the defendant 'had succeeded to the assets and liabilities of McKinley Corporation, and that if that corporation was liable to the plaintiff upon the evidence presented, a recovery might be had against the defendant.' It was also agreed that in 1949 McArthur was sales manager of McKinley Corporation; that 'his authority as such extended to employing manufacturer's representatives to sell hammocks in New England and to fixing their terms of employment'; and that in fact he did employ the plaintiff and agreed to pay him a commission.

There was evidence that following a talk with McArthur in March, 1949, at which the plaintiff's commission was fixed at ten per cent on the sales he would make in the New England territory, he was given samples of hammock fabric and some price lists. Thereafter he interviewed buyers for Jordan Marsh, with whom he was personally friendly and to whom previously he had made sales of other lines of merchandise. No sales were made by him to Jordan Marsh in 1949 other than one hammock which seems to have been purchased as a sample and for which the plaintiff claims no commission. He called on the Jordan Marsh buyers at intervals through 1949, and in January, 1950, arranged with one Hoye, the general merchandise manager of home furnishings for Jordan Marsh, to meet McArthur at a furniture show in Chicago. Hoye and McArthur discussed prices and styles but came to no understanding as to the terms on which Jordan Marsh would purchase hammocks. On January 26 McArthur submitted a bid in writing to a representative of Allied Stores, a corporation of which Jordan Marsh is a subsidiary. On February 13 Jordan Marsh placed an order with McKinley Corporation for two lots of special hammocks at a price of $14,650. During the year 1950 Jordan Marsh paid McKinley Corporation a total amount of $22,007 for hammocks.

On December 19, 1949, the plaintiff had written McArthur asking 'about the line, price changes, etc.' On January 9, 1950, he again wrote, informing McArthur that Hoye was going on a midwestern trip and stating that 'What Jordan's wants again this year is a hammock to sell for $10--they don't want to pay more than $6 for hammock and stand. They're supposedly in the market for 5,000 hammocks. * * * I would like an answer to my letter of Dec. 19, as well as information on new prices, styles, etc.' On January 14 McArthur sent to the plaintiff the following letter: 'I feel very bad about not answering your two letters sooner. * * * This year all sales east of Pittsburgh are being handled by Sig. Jacobs and Co. of 35-37 West 23rd Street, New York, N. Y. This firm is absolutely tops in the representation of summor furniture to furniture and department stores in the east and they are putting Swing Time over for us in a large way. Since they cover all of the eastern states we are sending them copies of your letters. In taking with them last evening (this is being written from Chicago) they told me that they have a man in New England at present. They will contact you when they get back to New York after the furniture and housewares shows. * * *' The plaintiff replied on January 18, 'Thank you for your letter of Jan. 14th. Of course, word of your new agents covering all of the Eastern states is news to me. I do believe, however, I should have been informed of this arrangement prior to the beginning of the New Year. I have spent a good deal of time trying to get things rolling at Jordan's and believe I deserve credit, if a sales is consummated.' McArthur wrote back on February 1 that a $6 hammock 'was not in the picture' so far as they were concerned; that he did not know whether they were going to sell Allied Stores (Jordan's) any merchandise that year but they had made a bid. On February 28 the plaintiff wrote that choosing a New York representative was...