MacVicar v. W. Asphalt Paving Corp.
Decision Date | 16 February 1926 |
Docket Number | No. 36649.,36649. |
Parties | MACVICAR v. WESTERN ASPHALT PAVING CORPORATION. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; Robert H. Munger, Judge.
Action to recover brokerage for finding purchaser for paving bonds. Verdict and judgment for plaintiff. Defendant appeals. Reversed.Fred H. Schmidt, of Sioux City, and W. A. Helsell, of Odebolt, for appellant.
Jepson, Struble, Anderson & Sifford, of Sioux City, for appellee.
We find it necessary to discuss but one question, whether the plaintiff furnished a purchaser ready, able, and willing to consummate the transaction.
The action is to recover the amount of an agreed commission earned. While the petition alleges a sale, the case was tried and submitted to the jury, and is submitted to this court, only as one for the recovery of a commission for finding a purchaser, and not for a commission on a sale actually consummated. The purchaser claimed to have been found was the Equitable Life Insurance Company of Iowa. The bonds in question, with other bonds, were sold under a financing contract to F. C. Hubbell. Defendant had a contract for paving in Hawarden on which they apparently had earned a bond issue of $80,000. Hubert Everist was defendant's manager. On July 22, 1920, he wrote a letter, “Exhibit A,” to S. D. Mangum, who was secretary of the Iowa Association of Municipal Contractors, to the effect defendant would have this issue December 15th and would offer them at 92 cents. The letter also referred to a proposition of another person to advance $55,000 for financing another section of the work. Plaintiff was officing with Mangum. Mangum showed the letter to plaintiff. Plaintiff interviewed F. M. Hubbell and F. W. Hubbell, who were, respectively, chairman of the board and vice president and secretary of the Equitable Company. The presentment of the Equitable Company, and of its proposal to purchase to the defendant, relied upon by the plaintiff, is in the form of a letter, Exhibit E, by the Equitable Life Insurance Company of Iowa, to the defendant August 5, 1920, as follows:
“Your favor of August 4th, with reference to the paving bonds to be issued by the city of Hawarden, has been received.
Our understanding of your proposition is as follows:
That you are to sell us on December 15, 1920, $80,000 of 6 per cent. paving bonds, covering section 2 of the Blueprint which you left at this office, the bonds to be paid for at 92 cents on the dollar.
This was the proposition offered to us by Mr. John MacVicar, and we will accept the same subject to our approval of the legal status of the bonds and a satisfactory inspection of the benefited district.
If this is the arrangement contemplated by you kindly advise us and we will arrange to have the district inspected within the very near future, and then can enter into a definite contract for the purchase of the bonds, provided, of course, our inspection is satisfactory to us.
Equitable Life Insurance Company of Iowa.”
It will be noted that the company's alleged acceptance is stated to be:
“Subject to our approval of the legal status of the bonds and a satisfactory inspection of the benefited district.”
It will be noted further that the Equitable Company referred the matter back to the defendant by this statement:
“If this is the arrangement contemplated by you kindly advise us and we will arrange to have the district inspected within the very near future and then can enter into a definite contract for the purchase of the bonds, provided, of course, our inspection is satisfactory to us.”
This letter was written by F. W. Hubbell. As a witness for plaintiff, Mr. Hubbell testified:
That, following that correspondence, “I did not make any investigation as to the records and proceedings in these bonds. Before I heard further from Mr. Everist, he practically withdrew the offer, and said he had made other plans. * * * These bonds were not purchasedand never were purchased by me or through me from the Western Asphalt Paving Corporation for the Equitable Life Insurance Company of Iowa. * * * My father, F. C. Hubbell, entered into a contract with Mr. Everist to finance the work at Hawarden and later purchased the bonds. * * *
“Q. At the time that letter was written by you, Mr. Hubbell, and mailed to Mr. Everist, and before any other or different arrangements were made, the Equitable Life Insurance Company of Iowa was ready, able, and willing to purchase the $80,000 bonds mentioned in that letter at 92 cents on the dollar, provided, of course, the legal status and the inspection of the district was satisfactory? A. Yes, sir. * * * The Equitable Life Insurance Company of Iowa cannot finance any job. * * *
Q. As a matter of fact, you did not consider that you had entered into any contract to buy them? A. No, sir. We had only made an offer. That offer was never accepted by the defendants in this case, or any of them. * * * The fact is that neither I nor my company ever told anybody absolutely that the company would take these bonds at 92 cents on the dollar, or any other sum. All that was ever said by me in that regard is contained in the letter marked Exhibit E. * * * I may have told Mr. MacVicar, subject to the approval of the district and the legal status of the proceedings that I would take the bonds, but I cannot say definitely. * * * The investment committee (of the Equitable Company) agreed to take the bonds, if they were satisfactory. * * * Before the Equitable Life Insurance Company would take any bonds, the legality of the bonds would have to be investigated by an attorney for the finance committee and his approval obtained. This would have to be done, not only as to the proceedings, but as to the form. That never was done. * * * Nobody ever did go up to examine for the Equitable Life Insurance Company of Iowa in regard to these bonds on the Hawarden job, as far as I know. * * *
Q. And while you didn't consider that as a binding contract, you did consider it, as you state in your deposition, as an offer on the part of the Equitable Life Insurance Company to take the $80,000 worth of bonds at 92 cents? A. Yes, sir.” All street improvement bonds have the same form in the state of Iowa practically, as far as witness knew. He said: “That was so understood at the time.”
Plaintiff testified:
That he first talked with F. M. Hubbell, left him a memorandum; later talked with F. W. Hubbell.
Plaintiff testified to a telephone conversation between Mangum and Everist in which Mangum said to Everist:
After this, Everist and plaintiff had their first communication, in which plaintiff says that Everist--
F. W. Hubbell made an investigation at Hawarden and interviewed defendant at Sioux City. He testifies he did not go there as an officer of the Equitable to examine the proposition for the Equitable, and nobody ever did, so far as he knew. The reason he did not go was Everist had turned down the offer contained in the letter of August 5, 1920. Asked why the Equitable did not purchase the bonds, witness said:
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