Smyth Bros.-mccleary-mcclellan Co v. Beresford

• Decision Date: 16 September 1920
• Citation: 104 S.E. 371
• Parties: SMYTH BROS.-McCLEARY-McCLELLAN CO. v. BERESFORD.
• Court: Virginia Supreme Court

104 S.E. 371

SMYTH BROS.-McCLEARY-McCLELLAN CO.

v.BERESFORD.

Supreme Court of Appeals of Virginia.

Sept. 16, 1920.

Error to Law and Equity Court of City of Richmond.

Action in assumpsit by Seton R. Beresford against the Smyth Bros.-McCleary-McClcllan Company. The court refused to set aside the verdict for plaintiff, and the defendants bring error. Affirmed.

George Bryan and Smith & Gordon, all of Richmond, for plaintiffs in error.

Williams & Mullen, of Richmond, for defendant in error.

SAUNDERS, J. This is a contest over commissions alleged by the defendant in error (plaintiff below) to be due under an oral contract between him and the plaintiffs in error. The controversy is brought before this court by a writ of error to the judgment of the law and equity court of the city of Richmond.

The origin of the controversy was in this wise: Plaintiffs in error, who were the defendants in the trial court, are large horse dealers located in the city of Richmond. At the outbreak of the European war the concern was anxious to sell horses abroad to be used in the operations of war. A trip was taken to New York City to meet certain persons who were said to be buying horses for foreign countries, but, to use the language of a member of the firm who was a witness in the trial court, "the parties did not seem to have contracts, and nothing came of it." Later representatives of the firm made another trip to the same city to get in touchwith some one who could aid them to secure a contract. Failing of success at first, they finally met a man named Quinton, who said that he could introduce them to an Englishman then in New York, who would, in all likelihood, he able to place a contract for them. This Englishman was Seton R. Beres-ford, the defendant in error. Beresford was a man of education, a native and citizen of England, but a resident of this country at different times since 1888. For two years, beginning with 1888, he was in Montana and Dakota, on a cattle ranch. In 1890 he went back to England, returning to this country in 1911, when he became connected with a banking house in New York City. In more than one instance he conducted important foreign business for this concern. In 1914 he joined the firm of Rogers, Brown & Co., Wall street, New York, and at the outbreak of the war was engaged in formulating for his firm a cooperative shipping scheme of considerable magnitude. From this brief description of the plaintiff's-activities in this country it will be seen that his associations indicate that he was a man of affairs in New York City, and not a casual visitor unknown in the business world of that great metropolis.

An appointment was made for the representatives of the plaintiffs in error (hereinafter to be referred to as Smyth Bros.) to meet Beresford at the Biltmore Hotel. Pursuant to this arrangement, the meeting was effected, and after the introductions were completed, the matter which carried the representatives of the concern to New York was taken up. After hearing the statement of Smyth Bros, as to their plans and purposes, and being advised of the extent of their operations, the capacity of their stables, and the shipping facilities at Newport News, Beresford became interested, and agreed to go to Richmond to look over the ground. He made the trip either on that day or the next. While in Richmond he inspected the firm's plant, examined the horses on hand, and, after looking over the harbor at Norfolk, expressed himself as "feeling justified in going further." He then went to Lexington, Ky., to meet one Kelham, who was also an Englishman and 'an acquaintance of short standing of Beresford. Kelham was the buyer in America for Dalton, Parsons & Co., horse dealers in London, England. Beresford brought Kelham to Richmond to meet Smyth Bros. During the trial of this case, when Beresford was on the stand, it was admitted by counsel for Smyth Bros, "that he [i. e., Beresford] brought us [i. e., Kelham and Smyth Bros.] together." Following this meeting, Kelham made a contract with Smyth Bros, to buy horses from them. It was for securing this contract that Beresford alleges that he was to be remunerated by Smyth Bros., upon terms specifically agreed upon by the parties. According to the former, he was asked in New York by Smyth Bros, if he "could sell horses for them, " and was told that if he could they "would be very glad to remunerate him." At this time nothing was said, according to Beresford, as to the terms of the remuneration. Later, so he states, a complete agreement was made in Richmond between him and James Smyth, acting for Smyth Bros. According to Beresford, this agreement was that "he should be paid $5 a horse for every horse sold by Smyth Bros, to Kelham, and a supercommission of $2 1/2 on light horses."

The petition of the plaintiffs in error makes the following statement of the contract between Smyth Bros, and Beresford:

"A contract was made between the plaintiff and the defendants by which he was to introduce them to Kelham, and secure a contract, or contracts, for horses for war purposes, plaintiff's remuneration to be $5 per head."

The contract between the parties was made in the latter part of October, 1914. It may be said in this connection that the defendants' version of what took place between them and Beresford, first in New York City, and later in Richmond, preceding and at the time of the contract for compensation, differs very materially from that given by the plaintiff, but it is admitted by the defendants that they "very readily agreed to give $5 a head" for each horse sold to Kelham and accepted. They insist, however, that this sum was not to be paid to Beresford solely for bringing them and Kelham together and securing a contract, or contracts, but in part for that service and in other part for additional services to be rendered by the plaintiff. Be this as it may, after the contracts between Smyth Bros, and Kelham and Smyth Bros, and Beresford were made, the defendants began to sell horses to Kelham at the agreed price.

Three shipments were made on which commissions were paid to Beresford. These commissions amounted to about $18,000. Some time in December, 1914, Smyth Bros, became dissatisfied with the arrangement Under which they were working, and early in that month they asked for a modification of Beresford's contract. In response to this request, Beresford wrote them on December 17th the following letter:

"As regards your suggestion that I should in the future forego part of what is payable to me from you on horses that you may provide for Mr. Kelham's business, I would like to point out that through my efforts you have been placed in a position to do a continuous business.

"One great advantage of this business has already been shown in the wide publicity that has been given to your operations. You were unable to sell your horses, or to establish yourselves with government contractors, whereas now you have many very attractive offers of future contracts, and you are known to be established and prepared to do business with gov-eminent contractors. This is all in addition to the contracts you have already filled and the offers that are being made to you by Mr. Kelham for future work.

"Under these circumstances, and knowing the assistance I have been to you, your suggestion that I should at such a moment consent to a reduction of my interest with you places me in a very difficult position. However, I am most anxious that you should have as free a hand as possible, so will gladly do what I can to assist you.

"I am leaving town for a day or two, but will take the matter up with you on my return. I wish to facilitate in every way Mr. Kelham's arrangements for shipping horses, and this fact is also a very strong consideration with me in the matter. I am satisfied that you have supplied Dalton-Parsons with very much superior horses to any they have had before and I am sure that they will be very pleased with them."

On December 18th Beresford wrote again to Smyth Bros, as follows:

"I have given full consideration to your assurances that your firm has lost money on the horses supplied for Mr. Kelham's business, and also to your request that I should examine your books on these transactions. I greatly regret that you should have been occasioned any loss.

"You ask me if, under the circumstances, I can see my way to modify the terms of my agreement with your firm for the payment of commission in the future. My answer is that I should be most willing to do so, and I am submitting to you a fresh proposal and trust that it will meet with your approval."

Accompanying this letter, according to Beresford, was a draft of a new agreement which he was willing to make. Nothing came of this counter proposition; indeed, the defendants deny that it was ever received by them.

Smyth Bros, state that on December 18, 1914, they wrote to Beresford announcing their intention to terminate the contract. This letter is herewith reproduced:

"We hereby notify you of our intention to terminate forthwith any question of commission upon horses sold by us to Mr. Harold E. Kelham, as the said Mr. H. E. Kelham complains to us that the amount of commission paid you in the past has been without his knowledge and consent, and the amount is such that it prohibits us from doing any further business together."

On December 24th Smyth Bros, wrote to Beresford as follows:

"We inclose herewith our check for $2,483.-50, which Mr. Howard Bailey requested us to send you.

"So far we have no contract with Mr. Kelham. Horses are getting more difficult to buy all the time, and the contract prices are too low for us to make any money.

"Thanking you for past favors, and wishing you a merry Christmas, we are. * * * "

This letter was received by Beresford in New York and duly acknowledged. The plaintiff denies that he ever received the letter of December 18th, relating to the termination of the contract. On December 21st, according to the...