Tahir Erk v. Glenn L. Martin Co.

• Decision Date: 12 June 1944
• Docket Number: No. 5167.,5167.
• Citation: Tahir Erk v. Glenn L. Martin Co., 143 F.2d 232 (4th Cir. 1944)
• Parties: TAHIR ERK v. GLENN L. MARTIN CO.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F.2d 232 (1944)

TAHIR ERK v.GLENN L. MARTIN CO.

No. 5167.

Circuit Court of Appeals, Fourth Circuit.

June 12, 1944.

Granville Whittlesey, Jr., of New York City(Donovan, Leisure, Newton & Lombard, Turnbull & Bergh, and Louis O. Bergh, all of New York City, and Simon E. Sobeloff and Helen Sherry, both of Baltimore, Md., on the brief), for appellant.

Charles C. G. Evans and G. Van Velsor Wolf, both of Baltimore, Md. (Marbury Gosnell & Williams, of Baltimore, Md., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Tahir Erk(hereinafter called Erk) brought a civil action against Glenn L. Martin Company(hereinafter called Martin) in the United States District Court for the District of Maryland, based upon an alleged breach of a contract of agency entered into between Erk and Martin.Judge Coleman entered an order dismissing Erk's action for failure to state an enforceable claim against Martin and, in turn, denying Erk's motion for leave to file an amended complaint, D.C., 32 F.Supp. 722.Upon appeal to this Court, 4 Cir., 116 F.2d 865, 871, we directed that leave be granted to Erk to file an amended complaint containing the following allegations:

"That the defendant, in sending said purported cancellation, did so with the intention to delay and hold off in closing the said sales contract or business subsequently entered and closed with the Republic of Turkey until after the said six and eight months period had run, for the purpose of fraudulently, wrongfully and in bad faith endeavoring to deprive the plaintiff of his just rewards and commissions under the said agency contract, and pursuant to said intention, did in fact so delay and hold off in closing the said sales contract or business with the Republic of Turkey."

Judge Coleman also permitted an amendment to the complaint and this amendment was broader than the amendment which was specifically allowed by us.We are of the opinion, however, that the evidence, as it was adduced in the trial before Judge Chesnut, was not sufficient to establish a claim or cause of action in the plaintiff, even under the allegations of this amendment which was allowed by Judge Coleman.

Upon the second trial before Judge Chesnut, Martin moved for a directed verdict in its favor and this motion was duly granted.Judge Chesnut reviewed the testimony at some length and carefully explained to the jury his reasons for directing a verdict in favor of the defendant, Martin.Erk has again duly appealed.

We do not think it is necessary to review in detail all the facts and testimony in this case.We are content to discuss only two questions and, in the light of our decision on these two questions, to affirm the judgment of the District Court.

We proceed, then, to discuss these two questions: (1) The liability of Martin for the cancellation of the agency contract in alleged bad faith; (2) Whether Erk was the procuring or efficient cause in securing the contract executed by Martin and the Turkish Government.

Below are set out, ipsissimis verbis, certain pertinent parts of the agency contract:

"1.This company has decided to appoint you its exclusive representative in Turkey * * *.

"2.Your appointment as our agent in Turkey is to run for an indeterminate period of time, and is cancellable by either party upon a sixty day notice in writing.

"3.In the event this company should elect to cancel this agreement with you, commissions will be payable to you upon any business which you have instigated prior to date of said cancellation, providing said business is closed by us within six months after date of cancellation of agency agreement. * * *

"4.This company reserves the right, at any time, to carry on negotiations direct with your Government, if in our opinion our mutual interests can be better served by our so doing. * * *

"6.The commissions which this company pays on business secured by its agent is 5%.These commissions are due and payable upon the completion of each contract, after delivery has been effected, and payment thereon received by us."

Judge Chesnut told the jury that Erk could not prevail unless the jury could, from the preponderance of evidence, find:

"First, the Turkish Government was ready, willing and able to close a contract for the purchase of military airplanes from the Martin Company on or about June 14, 1935, or at any time within eight months thereafter, despite the fact it could not obtain deliveries of the only model it was willing to buy before July 1, 1936; and also, second, that the Martin Company canceled the agency on June 14, 1935, in bad faith, for the purpose of depriving the agent of his commissions on a sale which was then substantially agreed upon; and also that the Martin Company in pursuance of said purpose to deprive the agent of his commissions declined, neglected or delayed the closing of said contract until more than eight months after the cancellation."

When Erk's counsel frankly conceded there was no proof of the last of these necessary elements — the deliberate delay in closing the contract until the lapse of eight months — Judge Chesnut directed, and the jury found, a verdict for the defendant, Martin.

Erk's counsel urgently insist that Judge Chesnut's instructions erroneously restricted Erk's right of recovery.Their contention is that the jury should have been told that, quite apart from any deliberate delay beyond the period of eight months after the cancellation of the agency contract, in closing the contract with Turkey by Martin, Erk could recover if the jury should and could find from the preponderance of the testimony that Martin canceled the contract of agency in bad faith for the purpose of defeating the payment of Erk's commission.Even if this contention be the law (which it is not necessary for us to decide), we think the desired instruction would have been improper in the instant case, for the reason that there was no substantial evidence tending to show that Martin, at the time of the cancellation of the agency contract, had any fair certainty, or even any reasonable hope, of concluding a contract with Turkey for the sale of any airplanes during the ensuing eight months or within any definitely determinable period of time thereafter.

Turkey had manifested in no uncertain terms its complete lack of interest in Martin's B10 planes.Turkey was interested only in the Martin B10B plane, and further insisted that no contract would be concluded by Turkey unless these planes could be delivered by a specified date.All attempts by Martin, and the Turkish Ambassador, to secure from the United States a release of the B10B plane for sale by Martin to foreign governments had met with a flat failure.

The agency contract was canceled by Martin on June 14, 1935.Permission to sell the B10B plane to foreign governments was not obtained by Martin from the authorities of the United States until August 12, 1935, and, then, this permission was expressly conditioned upon the fact that no deliveries of this plane could be made prior to July 1, 1936.After the date of this permission, Martin continuously solicited Turkey for a contract for the sale of these planes but little, if any, interest was manifested by Turkey until September, 1936.Finally, a contract for the sale of 20 planes of the B10B type was executed on January 11, 1937, between Martin and Turkey.Erk claimed a commission of 5% on the sale consummated under this contract.

If it be contended that the contract of agency made between Erk and Martin was, by virtue of the right of cancellation given to Martin by the express terms of this contract, quite hard upon, or even somewhat unconscionable as to, Erk the answer is, as Judge Chesnut said below:

"The contract as made by the parties must be enforced by the courts, and the courts have no power to change or modify the contract or to make a new contract for the parties."

Or, as was said in Cowan, Inc., v. Meyer, 125 Md. 450, 460, 466, 94 A. 18, 22:

"The rights...