Queen v. Jennings

Decision Date07 November 1919
Citation108 A. 379
PartiesQUEEN et al. v. JENNINGS.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Action by Emmet Queen and others against Edward H. Jennings. Verdict for plaintiffs, and defendant obtained a rule to show cause why a new trial should not be granted. Rule discharged as to liability, new trial granted limited to question of damages, and the verdict sustained in all other respects.

Argued June term, 1919, before GUMMERE, C. J., and MINTURN and BLACK, JJ.

King & Vogt, of Morristown, George A. Bourgeois, of Atlantic City, and Brainard Avery and George W. Alger, both of New York City (Jay E. Whiting, of New York City, on the brief), for plaintiffs.

Lindabury, Depue & Faulks' and R. V. Lindabury, all of Newark, and Clarence L. Cole, of Atlantic City (Wm. M. Robinson, of Pittsburgh, Pa., on the brief), for defendant.

BLACK, J. The trial of this case, at the Atlantic circuit, resulted in a verdict for the plaintiff for $450,452. The defendant obtained the rule to show cause, reserving all the exceptions taken throughout the trial. The reasons assigned for a new trial by the defendant are that the verdict is against the clear weight of the evidence, that it is contrary to and inconsistent with the charge of the court, the issues raised by the pleadings, and the evidence produced in support of the issues. Also that it is the result of prejudice or passion.

The purpose of the suit was to recover commissions alleged to have been agreed to be paid to the plaintiff by the defendant for procuring the sale of 941,000 shares of the common stock of the Pure Oil Company, a New Jersey corporation. The contract for such commissions is alleged to have been made on or about the 20th day of March, 1916, at the city of Pittsburgh, in the state of Pennsylvania. The contract was not in writing. The compensation for such service was to be the sum of $1 for each share of such stock sold, at a price satisfactory to the defendant. The stock, it is alleged, was sold through the plaintiff to William A. Read & Co. and Ohio Cities Gas Company for $23,054,500, a price satisfactory to the defendant, which was at the rate of $24.50 per share. The defendant denies that the plaintiff sold to or secured William A. Read & Co. and Ohio Cities Gas Company, or either of them, to purchase such shares, but admits that in May or June, 1917, a large number of such shares were sold to the two above-named companies. The defendant in his testimony, at page 390 of the record, admits that he made a contract with the plaintiff, based upon 25 cents a share and no more, and that contract was always in existence until April 19, 1917, when the deal was broken off. The two problems, therefore, for solution on the question of liability are: Was the contract terminated between the parties on April 19, 1917, and, if not, was the plaintiff the efficient or procuring cause of the sale of the stock? These questions were clearly and pointedly submitted to the jury by the trial judge. Does the testimony therefore justify the conclusion reached by the jury in finding both of these questions in favor of the plaintiff? Or is the weight of the evidence so clearly against the verdict that it justified this court in setting it aside? Our examination of the record leads us to the conclusion that both of these questions must be answered in favor of the plaintiff. On the first proposition, the defendant insists that the contract was terminated on the 19th of. April, 1917, immediately after the negotiations with William A. Read & Co. were broken off. "I told him that I was completely through with it, and washed my hands of the whole business."

The plaintiff denies this, and testifies that Jennings, the defendant, wanted him to revive it, i. e. the negotiations which he did, "and for me to keep my ear close to the ground and see what was going on, and keep it going," which I did. He saw Mr. Martin, of William A. Read & Co., the next day; "he told me several times later that things were moving along." On cross-examination, after being shown Jennings' telegram of the 21st, in answer to Queen's telegram of the same date, Queen was asked this question:

"That doesn't look as if you were continuing negotiations at his request?" A. Oh, I don't claim to have continued them at that time. He knew that; he got pretty well in mind that the trade was practically made. I agree with you he tried to lose me. He never lost Martin, though, or Read."

The jury had the benefit of seeing both parties. This testimony raised a jury question. The jury found the fact in favor of the plaintiff and against the defendant's claim of discharge. This question was clearly and properly left to the jury to say whether the plaintiff Queen was discharged, and, if discharged, whether such discharge was in good faith, the trial judge saying:

"Now in determining this question, you must do as I have said, search the facts diligently and find out what the actual truth is."

The next question is was the plaintiff, Queen, the efficient or procuring cause of the sale of the stock? The legal rule applicable to the facts is well and firmly settled.

The duty which an agent undertakes, the obligation he assumes as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement. The agent must be the procuring or efficient cause of the sale. Vreeland v. Vetterlein, 33 N. J. Law, 247; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 38 Am. Rep. 441; 19 Cyc. 257; 9 C. J. 613, 4 R. C. L. par. 42, p. 298.

Most of the testimony at the trial was directed at this point. The case took five days for trial, the record consists of a bulky volume of 556 pages. The plaintiff's exhibits are 143, mostly letters, and telegrams. The controversy is not so much over disputed facts as the correct conclusion to be drawn from admitted or conceded facts. Thus, the contract by which the shares of stock of the Pure Oil Company was sold was in writing. It was put in evidence by the plaintiff. It is not disputed that the final negotiations for the sale were made by Norton H. Weber, the vice president and treasurer of the Pure Oil Company and Mr. B. G. Daws of the Ohio Cities Gas Company. The buyer in the contract named is not William A. Read & Co., but Edward M. Hagar. Mr. Arlington C. Harvey, the attorney for the Ohio Cities Gas Company, testified that he and Mr. Eugene Mackay, the attorney for the Pure Oil Company, drew the contract for the sale of the stock in the Bellevue-Strafford Hotel in Philadelphia. The contract is dated June 2, 1917. The purchaser's name was left blank. Mr. Mackay gave Mr. Weber instructions what to do with the contract—

"That he was to take the contract, and after it was signed by all the directors of the Pure Oil Company he was to take it to New York, and have it signed by whoever William A. Read & Co. suggested, and he would fill in that blank whosever name was to go there. Mr. Weber was to have it signed by that man, and that Mr. Weber, without...

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  • Hager v. Weber
    • United States
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    ...v. Kick, 97 N.J.L. 92, 116 A. 796 (Sup.Ct.1922), affirmed 98 N.J.L. 183, 119 A. 1, 25 A.L.R. 1516 (E. & A.1922); Queen v. Jennings, 93 N.J.L. 353, 108 A. 379 (Sup.Ct.1919); Floersch v. Donnell, 82 N.J.L. 357, 82 A. 733 (Sup.Ct.1912); Juliano v. Abeles,114 N.J.L. 510, 177 A. 666 (Sup.Ct. 193......
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    ...v. Kick, 97 N.J.L. 92, 116 A. 796 (Sup.Ct.1922), affirmed 98 N.J.L. 183, 119 A. 1, 25 A.L.R. 1516 (E. & A. 1922); Queen v. Jennings, 93 N.J.L. 353, 108 A. 379 (Sup.Ct.1919); Floersch v. Donnell, 82 N.J.L. 357, 82 A. 733 (Sup.Ct.1912); Juliano v. Abeles, 114 N.J.L. 510, 177 A. 666 In Mt. Ada......
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    ...the jury, Sensfelder v. Stokes, 69 N.J.L. 86, 54 A. 517; Cook v. American E. C. & Gunpowder Co., 70 N.J.L. 65, 56 A. 114; Queen v. Jennings, 93 N.J.L. 353, 108 A. 379; or where the verdict plainly exhibits a compromise conclusion relative to the fundamental issue of liability, Juliano v. Ab......
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    ...considering their verdict. See McDonald v. Pless, supra; Bragg v. King, 104 N.J.L. 4, 139 A. 884 (Sup.Ct.1927); Queen v. Jennings, 93 N.J.L. 353, 108 A. 379 (Sup.Ct.1919); Peters v. Fogarty, 55 N.J.L. 386, 26 A. 855 (Sup.Ct.1893); Lindauer v. Teeter, 41 N.J.L. 255 (Sup.Ct.1879); Hutchinson ......
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