Argued
October 24, 1894
Appeal, No. 112, Oct. T., 1894, by defendant, from judgment
of C.P. No. 2, Allegheny Co., April T., 1894, No. 57, on
verdict for plaintiff. Reversed.
Assumpsit
to recover commissions on alleged sale of oil leases. Before
MAGEE, J.
At the
trial it appeared that, on Nov. 12, 1892, plaintiff was
employed by defendant to offer to the Eastern Oil Co. certain
oil property which defendant desired to sell. On Monday, Nov
14th, plaintiff offered the property to O'Neil
superintendent of the Eastern Oil Company at Buffalo, N.Y
Forman, the president, was in New York city. He was
telegraphed to. Plaintiff telegraphed the fact of
Forman's absence to defendants, Tuesday, Nov. 15, 1892,
adding that he would telegraph again that afternoon. On
Wednesday plaintiff telegraphed defendant, "Everthing is
favorable. Will go on property Friday. Will go to Pittsburg
to-night."
Plaintiff
testified: "Q. What did the Eastern Oil Co. say about
purchasing the property? A. They said if the property was as
it was represented, they would purchase the property. Q. You
mean in these statements and maps? A. Yes, sir. Q. That they
would purchase the property? A. Yes, sir; I then received a
message from the Woodland Oil Co. Q. Is this the message? A.
Yes, sir. Message dated Nov. 16, 1892, read as follows:
'No second message from you yesterday. Must have an
answer before to-night.' Q. You say you received this
message? A. Yes, sir; I received that message at halfpast
seven o'clock in the evening. I immediately went to the
telegraph office and wired the Woodland Oil Co. Q. State the
cause of the delay. A. That message had been sent in care of
George V. Forman's residence and had been taken to his
house, and then it was taken from there to Mr.
O'Neil's house, where I was. It was delayed an hour
or so. On receipt of that message I went to the telegraph
office and wired the Woodland Oil Co. Q. State if this is the
message you sent? A. Yes, sir. Message read as follows:
'your message just received. I leave for Pittsburg
to-night and consider trade closed.'" On Thursday
plaintiff went to defendant's office and "told Mr.
Underwood, vice president of defendant company, that I had
sold the property." Then, later, when Vandergrift,
president of defendant company, came in, plaintiff testified:
"I told him I had sold it, and he says 'They will
have to pay more money for it, $50,000 more than when you
went up there.' I says, 'I can't help that, that
is between you and them, I have nothing to do with that.'
I told him that I had arranged for Mr. O'Neil to come the
next day and go over the property, and he said, 'All
right, you bring Mr. O'Neil up here to-morrow morning
into the office.'"
No sale
was subsequently made.
The
court charged in part as follows:
"If
the authority to sell at the sum of $150,000 was withdrawn,
with notice thereof given to the plaintiff, -- because he
ought to have notice, -- before a sale had been made by him
on the terms authorized, then his compensation for service
based upon a sale would not be earned, but would depend upon
other considerations for its ascertainment. Now Mr. Weil has
stated in his argument that they do not ask anything except
the whole amount claimed, but it is dependent upon what the
jury find as to whether there was a commission of 2 1/2 per
cent agreed upon, or no agreement as to 2 1/2 per cent or to
any compensation, and that it depends on the circumstances
what in your judgment the verdict should be; if you find
evidence to warrant any other consideration as a reasonable
and proper compensation for the services rendered, you
disregard what the parties say as to that.
"[It
cannot be well said that, if the sale had been negotiated and
agreed upon, subject to the examination of the property to be
made by the purchaser as to the correctness of the
representations made, and accomplished within three or four
days or a week under the circumstances of this case, it would
be open to the objection that the operation lacked promptness
in execution, or that it was not accomplished within a
reasonable time to be allowed for the exercise of the
privilege conferred upon the plaintiff. The authority
conferred, however, was subject to recall at any time before
sale was made, but if delayed until the purchaser had been
secured, the compensation for the services would then be
earned.]" [1]
Plaintiff's
point was among others as follows:
"3.
If the jury believe, from the evidence, that J. W. Vincent,
the plaintiff, was authorized by the Woodland Oil Co., to
offer their property to the Eastern Oil Company, for the
present price of $150,000, said Eastern Oil Company were
entitled to a reasonable time in which to accept or reject
this proposition, and what was such reasonable time, is a
question of fact for the jury." Affirmed. [2]
Defendant's
points were among others as follows:
"1.
If the jury believe that the price named by defendant was by
the plaintiff agreed to be subject to change at any time, he
is not entitled to recover, unless before he was notified by
the defendants of a change in the price, he had secured a
purchaser, who was willing to close the bargain on the terms
proposed, without condition or delay. Answer: This point is
affirmed, with the qualification that the bargain be closed
on the terms proposed, without condition or delay,
inconsistent or at variance with the reasonable import or
terms of the authority conferred." [3]
"3.
That as between the plaintiff and defendant, the plaintiff
had no authority, under the evidence in the case, to hold the
offer open pending investigation of the property by
O'Neil, on behalf of the Eastern Oil Company. Answer:
Refused. I will not say that under the evidence it was a
holding, or that I could properly affirm that point."
[4]
"4.
That under the plaintiff's testimony to the effect that
the Eastern Oil Company had agreed to purchase at $150,000,
provided it became satisfied by the investigation of
O'Neil of the truth of the representations as to the
property, there was not such an acceptance of the
defendant's offer as would entitle the plaintiff to
recover. Answer: Refused. The matter is substantially
submitted to you as a matter of fact, as to whether the
plaintiff is entitled to recover." [5]
"5.
That under the plaintiff's testimony to the effect that
the Eastern Oil Company had agreed to purchase at $150,000,
provided that it became satisfied by the investigation of
O'Neil of the truth of the representations as to the
property, the defendant had the right, prior to or pending
such investigation, to withdraw the offer to sell at
$150,000. Answer: Refused. He had the right to withdraw it,
and the question is whether it was prior to, or whether he
was notified; and I could not affirm that without, perhaps,
misleading. By Mr. Sanderson: It does not assert as a fact,
that which it is for the jury to find. By the Court: I do not
say that the point is vicious, but I say that the words
'under the plaintiff's testimony' have that
effect. It says under these statements, that that is the
fact, and I decline to affirm it." [6]
"6.
That under the defendant's testimony, to the effect that
the Eastern Oil Company had agreed to purchase, provided it
became satisfied by the investigation of the truth of the
representations as to the property, and under the undisputed
evidence that the defendant telegraphed on Wednesday, before
the time fixed for the investigation, requiring an answer
that night, the defendant was entitled in reply to a
definite, complete and final acceptance of their offer. That
the reply of the plaintiff was not such an acceptance, and
that, as between the plaintiff and defendant, the defendant
had the right to declare the offer no longer open; and if the
jury believe that, in connection with the foregoing, the
defendant did so declare to the plaintiff on Thursday, the
plaintiff is not entitled to recover. Answer: This point I
decline to affirm. I am willing, however, to say to you that
if, under all the evidence in the case, you find as a fact
that the defendant did declare to the plaintiff that the
offer was no longer open, before sale made by him of the
property, there can be no recovery in this case of a
commission of 2 1/2 per cent on a sale of $150,000." [7]
"7.
That if O'Neil had notice, prior to leaving Pittsburg,
after his investigation of the property and before reporting
the result to the Eastern Oil Company, that the defendants
were no longer willing to sell for $150,000, the plaintiff is
not entitled to recover." Refused. [8]
8.
Request for binding instructions. Refused. [9]
Verdict
and judgment for plaintiff for $3,940.10.
Errors
assigned were (1-9) instructions, quoting them.
Judgment reversed and venire de novo awarded.
John F.
Sanderson, Walter Lyon and Charles H. McKee with him, for
appellant. -- Plaintiff cannot recover a commission because
he did not find a purchaser able, ready and willing to
purchase on the terms offered: McDonald v. Simcox,
98 Pa. 619; R.R. v. Rolling Mill Co., 119 U.S. 149;
Watson v. Brooks, 11 Oregon, 271; Martin v. Fuel
Co., 22 F. 596; McGavock v. Woodlief, 20 How.
221; Hester v. McNeille, 6 Phila. 234.
Plaintiff
had no power as agent to postpone purchase until after
examination: 1 A. & E. Ency. L. 349; Butler v.
Maples, 9 Wall. 766; Konig v. Bayard, 1 Pet.
254; Fairmount Cab Co., 47 Leg. Int. 524; Matthews v.
Sowle, 12 Neb. 398; Bliss v. Clark, 16 Gray, 60; 1 A. &
E. Ency. L. 359.
Defendants
had a right to revoke the offer at any time before final
acceptance and did so revoke it: Stitt v.
Huidekopers, 17 Wall. 384; Childs v. Gillespie,
147 Pa. 173.
The
revocation of...
