Runyon v. Wilkinson Gaddis & Co.

• Decision Date: 04 March 1895
• Citation: 57 N.J.L. 420,31 A. 390
• Parties: RUNYON v. WILKINSON GADDIS & CO.
• Court: New Jersey Supreme Court

31 A. 390

57 N.J.L. 420

RUNYON

v. WILKINSON GADDIS & CO.

Court of Errors and Appeals of New Jersey.

March 4, 1895.

(Syllabus by the Court.)

Error to supreme court.

Action by Orrin E. Runyon against Wilkinson Gaddis & Co. to recover commissions as broker. Defendant had judgment, and plaintiff brings error. Affirmed.

Samuel Kalisch, for plaintiff in error.

Henry Young, for defendant in error.

MAGIE, J. The assignments of error are based upon a single exception taken to the ruling of the trial judge in granting a nonsuit after the plaintiff below had rested his case. Runyon, the plaintiff in error, was plaintiff below. His action was brought against a business corporation, known as Wilkinson Gaddis & Co., to recover commissions upon an employment as a broker to sell the business and property of said corporation. His declaration contained counts upon a written contract of employment, and also the common counts. At the trial, he produced and proved a writing, executed by said corporation and himself, whereby, after reciting that the corporation had placed its business in his hands for sale to English parties seeking investments in this country, the corporation agreed, concerning such sale and the commission thereon, to pay him a commission of 5 per cent. on the price it might agree to receive, when actually received by it, and he agreed to accept the commission thus payable. After this proof, it is obvious that the contract furnished the sole ground for recovery in the action. The labor and service which were proved were referable to the contract, and gave no right to recover under the common counts. Hinds v. Henry, 36 N. J. Law, 328. Therefore, to maintain his case, Runyon must establish, by proof sufficient to be submitted to a jury, that he had earned his commissions under the written contract relating thereto. This he could only do by effecting a sale, or at least bringing to his principal a purchaser able and willing to buy at the price and on the terms fixed by It; for his written employment left his employer free to fix both the price and terms of the sale it was desirous to make.

The contention here is that, when the nonsuit was granted, the evidence was sufficient to justify a jury in finding that Runyon had earned his commissions by bringing together Wilkinson Gaddis & Co., and one Seligsen, of London, who did business under the name of Hopcraft Wilson & Co., and (to quote the brief of counsel) "that a valid contract of sale was entered into between them." If such was the case, the nonsuit was error. It is unnecessary to state the evidence in detail. It will be sufficient to present the facts proved which show the single point on which the case turns. Hopcraft, Wilson & Co., on September 17, 1889, addressed a letter to one Martin, who was working with Runyon to effect this sale, referring to the business in question, and proposing to take the matter in hand upon the following, among other, lines, viz.: Consent must be given to form an English limited liability company; the price of 'business, including plant, machinery, buildings, stock-book debts, and good will, to be $1,800,000; the capital of the company to be divided into 5 per cent. debentures, 7 per cent. preference shares and ordinary shares; and the vendor was to take the whole issue of debentures, £150,000, also £50,000 of preference shares,...