Singer Const. Co. v. Goldsborough

Decision Date07 April 1925
Docket Number2.
Citation128 A. 754,147 Md. 628
PartiesSINGER CONST. CO. v. GOLDSBOROUGH.
CourtMaryland Court of Appeals

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Action by Felix V. Goldsborough against the Singer Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

Walter H. Buck, of Baltimore, for appellant.

Philander B. Briscoe and Albert S. J. Owens, both of Baltimore (Briscoe, Jones & Martin, of Baltimore, on the brief), for appellee.

PARKE J.

Felix V. Goldsborough, a licensed real estate agent, appellee recovered a judgment against the Singer Construction Company a corporation, the appellant, in the sum of $2,137.50 as commissions for procuring a purchaser for appellant's 36 properties at Westport for $2,250 each, making the total price $81,000. The case was tried before the court on the common counts, and there are but two exceptions on the record. The first is to a ruling excluding, on cross-examination, a question asking the appellee if he had "closed the deal" at a certain time and place. This exception was not pressed on appeal, but it could furnish no ground for reversal, because the witness subsequently answered the inquiry by telling where the deal, in his opinion, was closed. If a party introduce at a later point in a witness' examination testimony which had been before held inadmissible, he cannot complain of the adverse ruling, as ultimately no injury resulted from the exclusion. It is a legal commonplace that an exception cannot be sustained unless it combines both error and injury.

The second exception is to the action of the court in overruling appellant's special exception to the appellee's first prayer, and in granting appellee's first prayer and in refusing the appellant's third, fourth, and fifth prayers. In granting the appellee's first prayer there was no reversible error, unless the appellant's theory that there was no legally sufficient evidence to entitle the appellee to recover be sound. This theory was presented by the special exception of the appellant, and by its third, fourth, and fifth prayers. The special exception to appellee's first prayer is that there was no evidence in the case to show or tending to show, the terms of sale that were authorized by the appellant. The three rejected prayers of the appellant are demurrers to the evidence. The point made by the special exception is embraced in the questions raised by the rejected prayers, and therefore the special exception and the rejected prayers will not require separate consideration.

The appellant's theory of a failure of proof rests upon the propositions; first, that the alleged employment of the appellee was unauthorized by the appellant; and, second, that there was no valid agreement between the buyer and the appellant, or its authorized agent, for the purchase and sale of the leasehold properties.

1. The Singer Construction Company is a body corporate, with its place of business in Baltimore. It was formed for the purpose of taking title to the real and leasehold property of a certain Frank D. Singer, Jr., and of liquidating his affairs by selling the property thus acquired. It opened an office, and, at the time of the transaction in question, its affairs were in charge of Richard B. Tippett, president, John M. Requhardt, treasurer, and Harry E. Silverwood, secretary, and its usual and routine business was selling its holdings of real and leasehold property. The sales were made without submission to a board of directors, and the testimony unquestionably tended to establish that the three named officers of the company were in charge, and that, before Mr. Requhardt left for Europe, either he or Mr. Tippett fixed the prices at which the properties were sold and executed the contracts of sale. It is also clear that there was sufficient evidence to prove that it was in the regular course of the company's business, and within his authority as one of its managing officers, for Mr. Requhardt, its treasurer, to begin, conduct and conclude the sale of properties, including the fixing of the price of sale, and the employment of real estate brokers in these transactions.

According to the testimony on the part of the appellee, the agreement in dispute was made with its officer, Mr. Requhardt, as a part of the appellant's daily conduct of its business and in reference to a matter which was a common incident of the exercise of its current corporate trade activities, and with an officer whom it had allowed to act publicly in that capacity. Under these circumstances such an officer bears the same legal relation to the company as an executive committee, a general manager, or a general agent, and his acts will bind the company to an intra vires contract made in its behalf with a third party. Owners' Realty Co. v. Cook, 123 Md. 1, 2, 90 A. 602; Lister v. Allen, 31 Md. 543, 547, 100 Am. Dec. 78; Northern Central Ry. Co. v. Bastian, 15 Md. 494, 501; Carrington v. Turner, 101 Md. 437, 442, 443, 61 A. 324; Buchwald Co. v. Hurst, 111 Md. 572, 576, 580, 75 A. 111, 19 Ann. Cas. 619; Md. Trust Co. v. Mechanics' Bank, 102 Md. 608, 634, 635, 63 A. 70; Himmel v. Merchants' T. & S. Co., 134 Md. 38, 41, 106 A. 157; Sun Printing & Publishing Ass'n v. Moore, 183 U.S. 642, 649, 653, 22 S.Ct. 240, 43 L.Ed. 366; Martin v. Webb, 110 U.S. 7, 3 S.Ct. 428, 28 L.Ed. 49; Henderson v. Raymond Syndicate, 183 Mass. 443, 446, 67 N.E. 427; Melledge v. Boston Iron Co., 5 Cush. (Mass.) 158, 175, 179; Topping v. Bickford, 4 Allen (Mass.) 120; Sherman v. Fitch, 98 Mass. 59, 64; Chestnut Street, etc., Co. v. Record Pub. Co., 227 Pa. 235, 240, 75 A. 1067, 136 Am. St. Rep. 874; Phillip v. Campbell, 43 N.Y. 271, 272; Chambers v.

Lancaster, 160 N.Y. 342, 349, 54 N.E. 707; Hess v. Sloane, 66 A.D. 522, 526, 73 N.Y.S. 313; Id., 173 N.Y. 616, 66 N.E. 1110; Chilcott v. Washington State Colonization Co., 45 Wash. 148, 152, 88 P. 113; Curtis L. & L. Co. v. Interior L. Co., 137 Wis. 341, 351, 352, 118 N.W. 853, 129 Am. St. Rep. 1068; Louisville, etc., Ry. Co. v. Louisville Trust Co., 174 U.S. 552, 573, 576, 19 S.Ct. 817, 43 L.Ed. 1081.

If the appellee's version of this agreement be accepted as correct, the terms of his employment were fixed with Mr. Requhardt, and this agreement would be unaffected by the fact that Mr. Requhardt, because of his approaching trip to Europe, left for the attention of Mr. Silverwood, the secretary of the company, the subsidiary details in carrying out the main object of the employment of the appellee in the event he should procure a purchaser, and present him for the consummation of a sale between the buyer and the company. The exigencies of business may, from time to time, require a subordinate agent to perform a ministerial act in the course of the fulfillment of the authorized agreement of his superior officer, if no special discretion or skill is required. Story on Agency, § 20. De Bussche v. Alt, 8 Ch. D. 286. 2. It follows from what we have said that there was enough evidence to find that the treasurer was authorized to employ a real estate broker for his company to sell its property. It is quite true that the employment of the appellee was denied, but this court has nothing to do with this issue of fact, which was raised below, submitted for a finding, and decided by the verdict. It is our restricted province to consider if there were any legally sufficient facts justifying the submission of the case to the court, sitting as a jury.

The appellee offered evidence tending to show that he was present in the office of the appellant on Thursday, May 31, 1923, when a sale of 36 leasehold lots, with improvements, at Westport, the property of the appellant, was rescinded by agreement. The parties present, who acted for the appellant, were John M. Requhardt, its treasurer, and Henry E. Silverwood, Esq., its secretary. As they walked out of the office, appellee followed, and he testified that the following conversation took place in the corridor. The appellee said:

"John Requhardt, give me those properties for about 24 hours; I think I can dispose of them. He said, 'All right, go ahead and sell them--$2,250.' I said, 'All right, subject to the ground rent' and mortgage liens."

It was then about 4:30 o'clock in the afternoon, and appellee went to work to make the sale. He secured in the morning of the next day a purchaser at the given price of $2,250 for every property, if the buyer could get necessary financial help; and he also obtained an offer of $2,200 a lot before 1 o'clock of the same afternoon, when he encountered Mr. Requhardt on the street. The appellee informed Mr. Requhardt that he had the two prospective buyers, but Mr. Requhardt declined to discuss any business matters, as he was leaving for Europe the next day, and referred him to Mr. Silverwood, stating, "You talk to Mr. Silverwood; take up any matter with him, and if you have any dealings about these buildings talk with Mr. Silverwood, and he will take care of you, and take care of the transaction," and the appellee left, saying, "All right."

At 4 o'clock of the same afternoon appellee obtained an offer of $2,250 for every one of the leasehold lots, subject to the ground rent and mortgage on every lot. The sale aggregated $81,000, and the purchaser was ready, willing, and able to close the deal. The appellee called by telephone, but found Mr. Silverwood out. The appellee then left his office, and met Silverwood on Lexington street about 4:15 and told him that the sale had been made to Meyer Abramson. The reply was "Well, I am not particular about doing business with Mr. Abramson, but still that doesn't make any...

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6 cases
  • Whiteley v. Schoenlein
    • United States
    • Maryland Court of Appeals
    • November 2, 1944
    ... ... Smouse, 103 Md ... 463, 467, 63 A. 1070, 115 Am.St.Rep. 367, 7 Ann.Cas. 1140; ... Singer Const. Co. v. Goldsborough, 147 Md. 628, 128 ... A. 754; Hohman v. Hohman, 164 Md. 594, 165 A ... ...
  • McKeever v. Washington Heights Realty Corp.
    • United States
    • Maryland Court of Appeals
    • May 3, 1944
    ... ... consummate the sale according to the prescribed terms ... Singer Const. Co. v. Goldsborough, 147 Md. 628, 638, ... 128 A. 754 ...          Appellants ... ...
  • Meson v. Gatx Technology Services Corp.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 16, 2007
    ...Maryland courts have found the prevention doctrine applicable involve facts similar to those in Fuller. Singer Construction Co. v. Goldsborough, 147 Md. 628, 128 A. 754 (1925), is representative of such limited circumstances. In Singer, a broker was employed to sell properties for a real es......
  • Cleaves v. Sharp & Dohme, Inc.
    • United States
    • Maryland Court of Appeals
    • March 2, 1934
    ... ... a broker who has earned it. Hill v. Iglehart and Martien v ... Baltimore, supra; Singer Co. v. Goldsborough, 147 ... Md. 628, 636, 128 A. 754; Howard v. Street, 125 Md ... 289, 300, 93 ... ...
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