Noble v. Mead-morrison Manufacturing Co.
| Decision Date | 05 January 1921 |
| Citation | 237 Mass. 5 |
| Parties | WILLIAM M. NOBLE v. MEAD-MORRISON MANUFACTURING COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 18, 19 1920.
Present: RUGG, C.
J., DE COURCY CROSBY, CARROLL, & JENNEY, JJ.
Contract, What constitutes, Performance and breach, Validity. Practice Civil, Motion for continuance, Question for jury, Exceptions Judge's charge. Evidence, Presumptions and burden of proof, Relevancy and materiality.
An exception to a refusal to grant a motion, supported by affidavits, for the postponement of a trial on the ground of the absence from the country of material witnesses presents to this court no question of law.
At the trial of an action by an attorney at law against a corporation upon an oral agreement alleged to have been made on July 30, 1915 for
"services rendered in obtaining an order from the British government for the manufacture of one hundred thousand six-inch shells at $18 per shell," there was evidence that, previous to July 30, there had been conversations between the plaintiff and the defendant's authorized general manager, in which the general manager had said that the defendant was looking for business and was ready to make munitions, but that he "did not care to enter into any arrangement about it; if anybody brought in any business he would pay for it;" that on July 30, in the presence of one B and following a discussion as to war contracts and a proposed meeting the following day between the plaintiff and a member of an advisory commission of the British government, there was a conversation in which the plaintiff said to the general manager, "I have told B that I will not present the name of any concern" to the member of the British advisory commission "unless I have a definite agreement as to my compensation, because I want no dispute about it afterwards;" that the general manager replied, "B says you have got to have five per cent;" that the plaintiff answered, "Yes, that is so;" that the general manager then said, "Well, that will be satisfactory provided we get an order and don't have to pay anybody else;" that the plaintiff then agreed that he would settle with others associated with him and would protect the defendant from their claims, and the general manager further stated, "I don't want you to talk the business end of it at all; I will talk prices myself . . . what
I want is to get in touch with some man who can talk for the government and I will do the talking." There was evidence controverting that of the plaintiff. Held, that
(1) A finding was warranted that a contract was made substantially as testified by the plaintiff;
(2) The contract which the jury from the plaintiff's testimony might find to have been made was sufficiently certain in its terms, and was not vague, uncertain and meaningless;
(3) A finding was warranted that the amount agreed to be paid to the plaintiff was five per cent of the gross price of the order, contract and business which the defendant procured;
(4) Upon the conflicting evidence, the contract being oral, the ascertainment of what contract was made, if any, was for the jury.
Instructions included in the charge to the jury, at the trial of the action above described, upon the question, whether the minds of the parties came into accord upon the subject matter of the contract and whether their understanding of its essential terms was mutual, were held to have been adequate.
At the trial of the action above described, there was further evidence tending to show that previous to July 30, 1915, the defendant's general manager had tried to secure a contract for shells and had failed and had said that he would not pay his fare to New York for that purpose again; that the plaintiff then visited a general of the British army, who was a member of an advisory commission of the British government without authority to make contracts, presented to him a drawing of a shell which the defendant preferred to make and described the defendant's facilities for making them; that as a result of that interview another member of the commission immediately visited the defendant's factory in Boston for an inspection, bearing a letter to the general manager and the defendant signed by the British general and containing a reference to the conference with the plaintiff and to representations made by one of the plaintiff's associates to another member of the commission as a reason for the inspection; that the report of the inspector was favorable; that thereafter the defendant's general manager interviewed the British general and was in frequent communication with him and bankers who were the authorized representatives of the British government until the contract was made. The foregoing evidence was controverted. Held, that a finding was warranted that the plaintiff and his associates were the efficient cause in the procuring by the defendant of the contract with the British government.
Instructions to the jury, at the trial above described, upon the question, whether the plaintiff and his associates were "the efficient cause in bringing about the contract, having it come to the defendant," were held to have been accurate and sufficient.
The mere fact, that a contract between a salesman and his principal provides that the compensation of the salesman as to a contract concerning goods to be furnished to the government shall be to some degree contingent upon his success in procuring the contract for his principal, does not render the contract illegal.
While a contract respecting public service and public welfare is illegal if by its express terms, by its inherent tendency or by the means necessarily or by fair implication intended to be employed in its execution it requires the performance of acts corrupt in themselves or inclining toward the pollution of public or private honesty and integrity of purpose, the question, whether such a contract is valid, must be determined in each case by weighing all of the elements involved therein; and, if upon the evidence there is a fair doubt whether those elements are present which would make the contract illegal, the question, what was the purpose of the contract, must be left to the jury.
At the trial of the action above described, it appeared that payment of any compensation to the plaintiff was contingent upon his success in procuring the making of a contract with the British government, and that the amount of his compensation was to be five per cent of the gross amount of a contract procured. The agreement between the plaintiff and the defendant on its face did not import the use of illegal means nor require the inference that the plaintiff held himself out as possessing political or other influence, or that the defendant thought that it was purchasing such influence. Conduct and correspondence of the parties did not as a matter of law indicate the use of personal or political influence as the means by which the ends sought were to be accomplished.
The relations of the parties were open and understood by all concerned. Held, that a finding was warranted that the import of the plaintiff's agreement was to act as attorney or agent in bringing the defendant to the notice of responsible representatives of the British government and in initiating negotiations in behalf of the defendant looking toward the consummation of a contract; and that the contract was not illegal as a matter of law.
At the trial of the action above described, evidence of work done by the plaintiff and his associates in the way of correspondence and negotiations looking to a performance of the contract was admissible although it was not shown to have been done with the knowledge of the defendant.
The plaintiff's claim, in the action above described, being upon an express contract and for an amount specified in the contract and depending upon the size of the contract procured between the defendant and the British government, evidence was not admissible as to the value of the services rendered by the plaintiff and his associates, or as to the amount done by the defendant in performance of its contract with the British government.
In the circumstances, it was held that it was not essential, as a prerequisite to the admission, at the trial of the action described above, of evidence of correspondence and conferences with members of the
British commission, to show their exact authority to act for their government.
CONTRACT for $90,000 for "services rendered in obtaining an order from the British government for the manufacture of one hundred thousand six-inch shells at $18 per shell," the plaintiff's claim being based upon an oral agreement, described in the opinion, alleged to have been made by the parties on July 30, 1915. Writ dated September 1, 1916.
The answer, besides a general denial, included an allegation that the contract relied on by the plaintiff was unlawful and unenforceable.
The action was tried in the Superior Court before Hitchcock, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. The defendant then asked for the following rulings of law:
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