Veazie v. Parker

• Decision Date: 22 July 1881
• Citation: 72 Me. 443
• Parties: ALBION P. VEAZIE and another v. HENRY PARKER and another.
• Court: Maine Supreme Court

72 Me. 443

ALBION P. VEAZIE and another v. HENRY PARKER and another.

Supreme Judicial Court of Maine.

July 22, 1881

ON EXCEPTIONS.

Assumpsit to recover compensation as a broker, for selling or obtaining a purchaser, who entered into the following written contract with the defendants, for the purchase of a quantity of ice.

(Contract.)

" Bangor, April 19th, 1880. The Brewer Sweet's Pond Ice Company, and the Sweet's Fresh Pond Ice Company, have this day sold to F. H. Clergue, the ice in their houses at Sweet's Pond, in South Orrington, on the following conditions:

Said Clergue shall pay for said ice at the rate one dollar and twenty-five cents per ton, cash, measured forty-five cubic feet to the ton; said Clergue shall have the right to occupy said houses and the land thereunder, until January 1, 1881 the title to said ice shall not vest in said Clergue until fully paid for. Said companies represent said ice to be good merchantable ice, none less than eighteen inches thick, and they agree to put it in good condition for preservation, by double boarding all around, and filling with sawdust or other suitable material. Said Clergue shall use so much of the hay etc. for packing on board as may be necessary."

Duly signed.

The writ was dated June 23, 1880; plea, general issue.

Barker, Vose and Barker, for the plaintiffs, cited: 8 Moak. 452; Cooke v. Fiske, 12 Gray 493; Love v. Miller, 21 Am. R. 192; S. C. 53 Ind. 294.

Laughton and Clergue, for the defendants.

Parker was ignorant of what was necessary to constitute " merchantable" ice. Veazie assured him that the contract was all right and he could safely sign it. The ice was not merchantable, and the contract failed.

A broker is required to employ in his principal's service, the diligence and skill which good business men are accustomed to apply under similar circumstances. If the principal derives no benefit from the broker's services by reason of the latter's unskillfulness, negligence or unfaithfulness, the latter is not entitled to compensation. 1 Pars. Contr. 99; 2 Chitty, Contr. 803, 804; Story, Agency, 331; Whar. Agency & Agents, 325, 726; 12 Pick. 328.

This negligence and unskillfulness the defendants should have been permitted to prove. McClane v. Maynard, 35 How. 313.

Plaintiffs did not find a purchaser for the ice which the defendants had to sell, and there was no valid contract, because the ice sold was not of the quality required by the contract, and therefore plaintiffs cannot recover. Benjamin Sales, § 50; Edwards, Factors and Brokers, 113.

A broker who brings parties together where one wants to buy a particular article and the other wants to sell that particular article, and a contract of sale is then made, may be entitled to his commission. But that was not done here. Clergue did not want to buy the ice which Parker had to sell, and the contract was void, and the broker did not earn his commission.

APPLETON C. J.

The plaintiffs are brokers and bring this action to recover compensation for their services as such.

The defendants having ice to sell, employed them to find a purchaser. They found one wishing to purchase and introduced the parties to each other. A bargain was made. Its terms were in writing. It was binding on the parties. So far as relates to compensation, a binding agreement to sell is a sale within the contemplation of the parties. Rice v. Mayo, 107 Mass. 550. Whether the contract is verbal or written, the bringing the parties together entitles the broker to his compensation. Barnard v. Monnot, 40 N.Y. 203; Higgins v. Moore, 34 N.Y. 417. It is no answer to the broker's claim, after he has found his employer a vendor, who makes a written contract for the sale of the property, that he could not make a perfect title, and therefore was unable to carry out his contract. Knapp v. Wallace, 41 N.Y. 477. Nor does a refusal to perform, constitute a defence. Love v. Miller, 53 Ind. 294; Cooke v. Fiske, 12 Gray 491. So, though a principal who has been brought by the broker into communication with the party with whom he is dealing, revokes his authority, and takes the negotiation in his own hands. Stillman v. Mitchell, 2 Robertson 523; Green v. Ballard, 108 E. C. L. 681. The contract is that of the parties. The brokers are not parties to it. ...