Samuels v. Luckenbach

• Decision Date: 04 May 1903
• Docket Number: 206
• Citation: 54 A. 1091,205 Pa. 428
• Parties: Samuels v. Luckenbach, Appellant
• Court: Pennsylvania Supreme Court

54 A. 1091

205 Pa. 428

Samuels v. Luckenbach, Appellant

No. 206

Supreme Court of Pennsylvania

May 4, 1903

Argued January 7, 1903

Appeal, No. 206, Jan. T., 1902, by defendant, from judgment of C.P. No. 5, Phila Co., Sept. T., 1901, No. 471, on verdict for plaintiff in case of William S. Samuels v. Lewis Luckenbach. Reversed.

Assumpsit to recover commissions for the sale of a tugboat.

The facts are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $2,210. Defendant appealed.

Error assigned amongst others was the portion of the charge quoted in the opinion of the Supreme Court.

Judgment reversed, and now judgment entered for defendant.

Edward F. Pugh, with him Henry Flanders, for appellant. -- It was for the court to pass upon the letters, and instruct the jury as to their pertinence and probative force: Ulrich v Getz, 9 Pa. Superior Ct. 289.

The letters cannot be so construed as to entitle the plaintiff to any commission on the sale of the tug Lewis Luckenbach: Mayer v. Rhoads, 135 Pa. 601; Alexander v. Rollins, 84 Mo. 657; Hermann v. Niagara Fire Ins. Co., 100 N.Y. 411 (3 N.E. Repr. 341); Green v. Hinkley, 52 Iowa 633 (3 N.W. 688).

To authorize a broker to claim commissions, he must have been employed to sell the particular property: Mayer v. Rhoads, 135 Pa. 601; Hamm v. Weber, 19 Misc. 485; (43 N.Y.S. 1059); Markus v. Kenneally, 19 Misc. 517 (43 N.Y.S. 1056).

It is not sufficient for a broker to prove that a sale was effected by his means: Pierce v. Thomas, 4 E.D. Smith (N.Y.), 354; Bright v. Stock Yard Co., 83 Hun, 482 (32 N.Y.S. 71); Fowler v. Hoschke, 53 A.D. 327 (65 N.Y.S. 638); Benedict v. Pell, 70 A.D. 40 (74 N.Y.S. 1085); McVickar v. Roche, 74 A.D. 397 (77 N.Y.S. 501).

When Spreckles declined to buy either the "Ocean King," the "Edward Luckenbach," or the "Walter A. Luckenbach" (which were the only tugs at any time put into the hands of Samuels for sale), the contract between Samuels and Luckenbach was at an end: Kifer v. Yodor, 198 Pa. 308; Doonan v. Ives, 73 Ga. 295; Bouscher v. Larkins, 84 Hun, 288 (32 N.Y.S. 305); Sibbald v. Bethlehem Iron Co., 83 N.Y. 378; Mears v. Stone, 44 Ill.App. 444.

John F. Lewis, with him Francis C. Adler, for appellee. -- The seller must exercise perfect good faith in the transaction, and the person procuring a sale is entitled to his commission, if he be the efficient cause in producing the sale: Keys v. Johnson, 68 Pa. 42; Reed v. Reed, 82 Pa. 420; Holmes v. Neafie, 151 Pa. 392; Coleman v. Meade, 13 Bush (Ky.), 358; Adams v. Decker, 34 Ill.App. 17.

Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE MITCHELL:

The dealings of the parties were altogether by telegrams and letters. The contract therefore having to be gathered from the writings, its terms and construction were for the court and the defendant's point to this effect should have been affirmed. But as it does not appear that the construction of the contract was really left to the jury, except negatively by the failure to charge otherwise, the error would not be material if the case was in other respects properly submitted.

A much more important error however was contained in the instructions upon the requisites of the plaintiff's cause of action. On this subject the judge charged, "the question in this case as the court will leave it to you to be determined, is whether or not this plaintiff brought these parties together and was the efficient means of effecting the sale of this boat. That is what you will have to consider and determine, and the court will charge you that if he was the efficient means of producing the sale of this boat, he is entitled to his commission, but if he was not the efficient means, he is not entitled to his commission." This was inadequate in overlooking the element of employment or authority. A mere volunteer is not entitled to commissions though he brings the parties together and is the efficient means of procuring the sale. Even a broker whose business it is to bring buyer and seller together "must establish his employment as such, either by previous authority or by the acceptance of his agency and the adoption of his acts:" Keys v. Johnson, 68 Pa. 42. The fact that a broker had previously made a sale and been paid a commission, will not entitle him to a commission on a subsequent sale made by him on behalf of the same vendor, but without request or employment: Mayer v. Rhoads, 135 Pa. 601. And as a necessary corollary the employment must be to sell the thing for the sale of which commissions are claimed.

The employment of the plaintiff, gathered as it must be from the writings, was to sell or find a purchaser for one of two tugs specifically named. The correspondence opened by a telegram from plaintiff to defendant inquiring as to tugboats for sale and asking particulars and lowest cash prices. Defendant replied by a letter offering a large tugboat not named and the Ocean King. Plaintiff wrote again asking "more complete information" about the Ocean King and saying the price of the large tug was too high. Defendant again replied with further particulars about the Ocean King and saying "the other tug I don't think your party wishes to purchase on account of the price being too high. My price is $30,000" (evidently a slip of the pen as $85,000 was the price named both previously and later). Plaintiff next wrote that the Ocean King might suit his clients but the larger tug, which though not previously named he seems to have recognized as the Edward Luckenbach, would suit them better "but not at the price $85,000." Several...