Smith v. Plant

• Decision Date: 31 October 1913
• Citation: 103 N.E. 58,216 Mass. 91
• Parties: SMITH v. PLANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 91

103 N.E. 58

SMITH v. PLANT.

Supreme Judicial Court of Massachusetts, Worcester.

October 31, 1913

Oct 31, 1913.

COUNSEL

Chas F. Choate, Jr., and John L. Hall, both of Boston, for plaintiff.

Robt. M. Morse, Wm. H. Dunbar, Edward F. McClennen, and John R Lazenby, all of Boston, for defendant.

OPINION

LORING, J.

This action was brought to recover a 5 per cent. commission on the price received by the defendant from the United Shoe Machinery Company for a sale to it of his patents and shares in the capital stock of the Thomas G. Plant Shoe Company.

Certain facts were not in dispute. Before the matters here in suit took place there were no business relations between the plaintiff and the defendant. Their acquiaintance grew out of their exhibiting horses at fairs and horse shows. It seems to have been common knowledge that the defendant was an antagonist as well as a competitor of the United Shoe Machinery Company. The plaintiff, who had been educated in mechanics and in schools of design, testified that he had been engaged in the manufacture of fabrics, had invented patents, had been retained as a patent expert and had been instrumental in bringing about a consolidation of competing manufacturers. He further testified that in 1910, six years after their acquaintance began, he and the defendant had a talk at the Brockton Fair, where the plaintiff had been a judge and the defendant's horses were competing. The defendant asked the plaintiff what he was doing, and after telling him what he was doing the plaintiff said that he knew what he (the defendant) was doing, and volunteered the advice that it was better 'to get in' with the trusts than 'to make faces at them,' and that if he (the defendant) had what he (the plaintiff) believed he had, he was 'going to be useful to the Shoe Machinery.' To this the defendant said that he had his own plans. There were a few letters of no importance in 1909. Beginning at the end of May, 1910, and ending June 10, 1910, the plaintiff wrote to the defendant giving him unsolicitated advice as to how to deal with the Shoe Machinery Company and its officers. In a letter of June 9th, the plaintiff wrote to the defendant that if any one was working as he wanted to work in this matter he would like to know it, and if the defendant wrote him, 'I know the Shoe Machinery managers so well that I feel your efforts would be in vain,' he would stop. To this he received no answer. On the evening of July 21st, the defendant, then at the Belmont Hotel in New York City, telephoned to the plaintiff, then at his home in North Grafton, Mass., to come to New York by the night train. The plaintiff did so, arriving at about 6:30 the next morning. So far the facts seem not to be in dispute. Further it was not in dispute that a good many years before 1910 the defendant had received from the United Shoe Machinery Company what he considered unfair treatment. In consequence of that treatment he had stripped his factory of all machines of that company, had invented and patented machines to compete with it, and had organized a corporation named the Thomas G. Plant Company, which was successfully manufacturing shoes under the defendant's 'Wonder Working' machinery. The defendant owned 60 per cent. of the capital stock of the Plant Company. About the middle of June, 1910, the defendant had tried to sell his shoe patents to the Shoe Machinery Company through one Endicott, who was a manufacturer. While these negotiations were going on, Mr. Endicott became a director of the Shoe Machinery Company and the negotiations came to an end about July 7th. The final meeting was held at the Algonquin Club in Boston, at which Mr. Winslow, the president, and Mr. Herrick, the counsel, of the Shoe Machinery Company, among others were present. These two men the defendant subsequently told the plaintiff were at that time strongly opposed to the proposed trade between the defendant and the Shoe Machinery Company. In addition the plaintiff testified that the defendant had told him, before he was summoned to New York on the evening of July 21st, that he had had 'the pleasure of telling him [Mr. Winslow] what I thought of him.'

The plaintiff had called on Col. Barbour, vice president of the Shoe Machinery Company, of his own motion, and had told him of the great value of the defendant's patents and had been told by Barbour that Mr. Winslow, in Boston, was the man to see. The plaintiff testified that, when he told the defendant this on July 15th, the defendant had answered that he had his own plans. In this conversation the plaintiff had told the defendant that 'the New York end is the proper end to work at.'

On arriving in New York on the morning of July 22d, the plaintiff--so he testified--went to the defendant's room in the Belmont and woke him up. He testified that the defendant then said to him (the plaintiff) that he had sent for him because he thought that his 'plan of the New York end is the right plan.' After some further conversation the defendant said (so the plaintiff testified): 'If you can get Barbour to send for me, so when I come into the office he will say, 'Plant, I asked Mr. Smith to bring you here,' I believe that I can so put matters before him, with that opportunity that you make, that the negotiations will go along and that I can bring Barbour over to our side. Barbour was strongly against the purchase of the patents, etc., at the Algonquin Club meeting.' And also that he (the defendant) asked him (the plaintiff) if he could 'go and get Herrick, whom I have never met, so I can talk with him and show him the great value of getting the Thomas G. Plant shoe factory of which I now own 60 per cent. of the stock, bringing in $600,000 or $700,000 a year which would carry the shoe patents.' The plaintiff testified that he then asked him his price and that the defendant answered: 'Smith, the question of price is my own. What I want to do is to get in so I can talk with Barbour and get in so I can talk with Herrick. I don't want you even to mention a money price. * * * You keep your hands off the price; you get these men where I can show them the value of what I have got and I will close these negotiations myself.'

The plaintiff then testified that he saw Barbour and arranged a meeting for that afternoon, and that at that time he went to Barbour's office with the defendant and introduced the defendant. 'This is Mr. Plant. * * * As I understand you sent for Mr. Plant.' Thereupon they talked for some six hours; toward the end 'their manner was friendly and agreeable,' and the interview ended with an appointment for the next morning. The plaintiff and the defendant dined and spent the evening together at the Belmont Hotel. At that time the defendant congratulated the plaintiff on what he had accomplished, and said: 'You have done exactly as I wanted you should do with Barbour and now I want you to line up Bob Herrick.'

The plaintiff further testified that during dinner the defendant said to him: 'In regard to this 5 per cent. that you talk about once in a while that you have made on your other deals, there is no 5 per cent. for you in this.' That he (the plaintiff) told the defendant that he was going to get 5 per cent. or 'I do not do any more work in the matter.' That on the following morning the first thing the plaintiff said was: 'How about that 5 per cent?' That the defendant said, 'I am not going to pay it.' To which the plaintiff answered: 'I am through, I shall simply tell Barbour that you are impossible.' That after breakfast they took a cab and on the way to Barbour's office the defendant said he would pay him the 5 per cent., but proposed to get some of it from the Shoe Machinery Company; and for that purpose he proposed to the plaintiff that during the coming interview he should turn to Barbour and say, 'Where does Smith come in?' and that he (the plaintiff) should say, 'At the end, anything that is fair;' that then he (the defendant) would say to Barbour, "We will take care of Smith,' and Mr. Barbour will say, 'Yes,' and then we have got him.' To which he replied: 'All right, Mr. Plant; but remember I will look to you for the 5 per cent. You can get what you want out of the Shoe Machinery.' The plaintiff testified that during the interview with Barbour this conversation took place as planned. The result of the interview on Saturday, July 23d, between Barbour and the defendant, was that Barbour promised to go to Boston the next day and take the matter up with Winslow.

The plaintiff further testified to a number of visits to Herrick and Winslow, and that he finally arranged for a meeting, between the defendant and Herrick at the Touraine on Tuesday, August 2d; that he engaged a room for them, and as Herrick entered he said, 'Mr. Robert Herrick, this is Mr. Thomas G. Plant,' and then left them together as the defendant had requested him to do. The plaintiff also testified that on August 15th he saw Winslow, and that after a long conversation Winslow told him (the plaintiff) to tell the defendant that he (the defendant) had broken off the negotiations and that 'we are ready to take them up again'; that he told the defendant that, and he (the defendant) answered that he was 'sick and tired of this Shoe Machinery crowd,' and that he did 'not propose to have anything more to do with them.'

There was evidence that the defendant sold his machines, patents and stock in the Thomas G. Plant Shoe Company on September 22d and 23d, and carried the sale through on September 30th and that the price was $6,000,000. On September 24th the plaintiff wrote to the defendant his congratulations and proposed to 'run off' his work from July 30th to date, to enable him to mail a copy to Barbour, 'so that when the...