Phinney v. Hall

• Decision Date: 10 July 1894
• Citation: 101 Mich. 451,59 N.W. 814
• Court: Michigan Supreme Court
• Parties: PHINNEY v. HALL.

59 N.W. 814

101 Mich. 451

PHINNEY v. HALL.

Supreme Court of Michigan

July 10, 1894

Error to circuit court, Saginaw county; Robert B. McKnight, Judge.

Action by Edwin R. Phinney against Edmund Hall to recover commissions on the sale of certain lands to defendant. There was a judgment for plaintiff, and defendant brings error. Reversed.

Henry A. Chaney (Hatch & Cooley, of counsel), for appellant.

Weadock & Purcell, for appellee.

MCGRATH C.J.

This suit is brought to recover a commission upon the sale of certain Canada pine lands known as timber limits Nos. 100 101, 105, and 106. Plaintiff insists that on the 2d of April 1891, he met defendant. "I said I had some Canada timber in my possession I would like to show him, belonging to Pack Woods & Co., of Cleveland, on which, if he would like to buy it, I would get him a refusal. Hall got out a map of the county where it lay, and the tracts in question were numbered on the map, and the names of Pack, Woods & Co. were on them. *** He asked me how much timber there was on them, and I gave him all the information I had from Pack. *** Then he wanted to know the price, and I said the price to them had been $500,000; that Pack had made two groups of them, one consisting of berths 100 and 101, into one group called 'Number One,' and the other of berths 105 and 106, into 'Number Two,' and the price of each was $250,000, or $500,000 for the four. Well, after talking further about it, he finally said, said he: 'They look well, and lay well in a group; look well to lumber and well to handle. Now,' he said, 'I would like to look at them, and if I could get a refusal at less money.' 'Well, now,' I says, 'I don't know as we can get any less refusal on them at all.' And finally he said, if he could get a refusal of $450,000, he would go and look at them. 'Well,' I said, 'I don't know as we can get any refusal for less than half a million dollars.' However, upon that conversation and talk at that time, and by his request, I wrote to Mr. Pack. I said to Mr. Hall: 'At the price they have been offered,-half a million dollars,-you will have to pay me $10,000 if you buy them all; or if you buy one group, or two berths, you will have to pay me $5,000.' And he finally said, says he 'I suppose you get a commission from Mr. Pack?' And I said, 'I do.' And he said: 'Of course, that makes no difference to me. If I can buy them, commission and all at the price, I am willing to take them.' And, after talking some little time further, he requested me to get a refusal of them four limits at $450,000. I did take up the matter with Mr. Pack with reference to getting a price on those lands. I next saw Mr. Hall, on the 8th day of April, at my office, in this city. At the Detroit conference, I said to Mr. Hall: 'Now, Mr. Hall, there is just one commission to this land. In case you buy it all, it don't make any difference what price you buy it at, you have got to give me $10,000, if you buy it now, or at any time; buy it at $450,000, or at any price.' That was the talk that we had, and he consented to it; and upon that I got the refusal or got a letter from Mr. Pack. On April 8th, I saw Mr. Hall, at my office in this city. I telephoned the invitation to him to see if I couldn't see him. I learned he was in the city, and was at Judge Edget's house to dinner, and I telephoned him there, and made an agreement to have him call at my office in the post office when he came down from dinner, which he did. I had a talk with him at that time. I said that I had written Mr. Pack, as he had requested me, the day after I left his office in Detroit; and that I had a letter from Mr. Pack in reference to that, and he authorized me to offer the four limits at $450,000. I think I showed him the letter." On April 9, 1891, Hall wrote plaintiff as follows: "The advices we get from Canada seem to show it to be impracticable now to travel over limits, as the streams are all at flood; and I find Mr. Morey had promised to send our men as soon as snow is off to look at some other limits. So it is impracticable at present to take an option on the limits we talked with any expectation of looking them promptly. I am greatly obliged for the interest you have manifested in helping me to get on the trace of some good limits. If I can see a chance of getting men onto those limits hereafter, if they remain in your hands unsold, I will write or see you personally." On May 18, 1891, plaintiff wrote defendant as follows: "The Canada timber limits already talked to you about and made you price upon are still in the market at the price given you. No one has had the refusal since I talked with you last, and it is now a good time to look at this timber; and if you would like the refusal, and could look at it, I shall be pleased to get the same for you. If you have an idea that you would care to look at it at all, and it is not convenient for you to look at it now, how soon before you will be able to send and have it examined?" Hall replied May 19th as follows: "I have four men over in Canada now, and they cannot be expected back before the flies would render it impracticable to stay in the woods. I shall not probably attempt to do anything till after midsummer." On August 28, 1891, Hall wrote Phinney as follows: "As man having an option on two of the Pack, Woods & Co. limits you once had for sale wants me to look at them with the view of buying. I write to ask advice and...