Wadsworth v. Adams

• Decision Date: 02 February 1891
• Citation: 34 L.Ed. 984,138 U.S. 380,11 S.Ct. 303
• Parties: WADSWORTH v. ADAMS
• Court: U.S. Supreme Court

138 U.S. 380

11 S.Ct. 303

34 L.Ed. 984

WADSWORTH v. ADAMS.

February 2, 1891.

By the judgment below the defendant in error recovered the sum of $12,800 as damages for the alleged breach of an agreement made in March, 1883, at Birmingham, Ala., between him and H. F. de Bardeleben, representing Frank L. Wadsworth, trustee, whereby the plaintiff was to receive $10,000 if he negotiated the sale, at a discount of 8 per cent. per annum, of 5 promissory notes of $100,000 each, payable in 1, 2, 3, 4, and 5 years, executed to said trustee by the Pratt Coal & Coke Company, and secured by mortgage upon its property. The proceeds of the notes at that discount would have been $380,000.

The undisputed facts in the case are as follows: Adams went to the city of New York for the purpose of finding a purchaser of the notes. He there offered them to J. J. McComb at a discount of 8 per cent. per annum. According to the plaintiff's testimony, McComb did not say whether he would take them or not, but put his clerk to making calculations in relation to them, and left his office to see if he could make arrangements to get the money in the event he bought the notes. On his return, McComb said he would give $350,000 for them, and requested plaintiff to telegraph that offer to De Bardeleben. Plaintiff told him that it was useless to send such a telegram, as De Bardeleben would not accept the offer. McComb insisting on his offer being sent, Adams telegraphed De Bardeleben from New York, under date of March 27, 1883: 'I can sell the five notes with mortgage for three hundred and fifty thousand dollars cash, the right of trustee to sell and trasfe r being all right. Answer.' It does not appear at what hour of the day this telegram was sent, but the plaintiff testified that just before he left McComb, at 4 o'clock in the afternoon of the 27th of March, 1883, he asked him what he should do if De Bardeleben refused the offer of $350,000. McComb replied that 'if De Bardeleben refused the offer of $350,000, then he would take the notes at De Bardeleben's proposition,—that is, at eight per cent. per annum discount.' Adams then went from New York to Philadelphia; and he testified that, after leaving McComb on the afternoon of the 27th of March, he did not see or have any communication with him in relation to the notes or their sale or purchase.

Under date of March 28, 1883, De Bardeleben telegraphed to Adams at Philadelphia, where the latter resided: 'Cannot accept offer.' Adamsimmediately, on the same day, replied by telegram from Philadelphia: 'Have made the negotiation on the terms you gave me. Bring on your papers with Smith's opinion on the matters I mentioned to you. Let me know here when I shall meet you in New York.' On the same day there was sent from New York, in the name of Adams, this telegram to De Bardeleben: 'Please answer my telegram of yesterday.' In reference to the latter telegram, which was received by De Bardeleben on the day of its date, the plaintiff was asked on cross-examination whether he did not send it. The bill of exceptions states: 'After some hesitation he said possibly he might have done so, but had no recollection of going back to New York on the 28th. He was then asked by defendant if he had not given McComb authority to send said dispatch in his name; to which he said, 'possibly I may have, done so, but I have no recollection of it.' Upon further cross-examination, he said he had not sent said dispatch, nor had he any recollection that he authorized McComb to send it in his name.' He further testified, on cross-examination, that he told McComb that De Bardeleben, for whose wife and children Wadsworth was trustee, 'wanted money very badly, and that he wanted it as soon as possible; that he told McComb this while talking to him about the sale of said notes.' Why Adams felt obliged to inform McComb of his principal's urgent need for money does not appear from the evidence.

De Bardeleben replied, on the 29th of March, to Adams' Philadelphia telegram of the 28th, in these words: 'You are too late. Have disposed of the notes.' Adams telegraphed to De Bardeleben, under date of the 30th: 'You are too late. You gave me explicit authority to sell at certain price, you to pay my commission. I wired you an offer I had below price you had named. You answered you could not accept offer, but said nothing about withdrawal of my authority to sell. I then sold to J. J. McComb, of Dobbs' Ferry, New York, on terms authorized by you, and you should confirm that sale forthwith. Answer.' Under date of March 31st De Bardele- ben telegraphed to Adams: 'Your effort to beat me down in price has lost you the notes; will write.' To this Adams replied by telegram under date of April 2d: 'Assumptions of your dispatch wholly unfounded; no effort to beat you down; reported you the offer had. Your refusing the first offer led me to dispose of the notes at your offer, which I did, and so reported to you.' The plaintiff received from De Bardeleben, two or three days after it was written, the following letter, under date of March 31st: 'I telegraphed you this A. M.: 'Your effort to beat me down in price has lost you the notes; will write,'—which I now confirm. When you left me on the hotel piazza you said that if Gov. Smith pronounced the papers all right you would take one-half and McComb the balance, you to telegraph me so soon as you got home. When I received your telegram offering me three hundred and fifty thousand dollars, I saw you were trying to make me take as little as you could, which was not in accordance with our understanding, so I at once took steps to sell to another party, which have done. I am very sorry that it has turned out so, as I expected to have you in my big coal company that I am now forming, you to do the financiering and I to get the property in shape, by which each would have made a quarter of a million dollars. I very much regret that it looks as though we will not be interested together.'

It should be stated in this connection that when De Bardeleben received the telegram offering $350,000, and the telegram of March 28th from New York, requesting an answer to the New York telegram of the 27th, he was in conversation with Col. Ensley, who offered $380,000 for the notes. The offer was immediately accepted. So that the notes were sold by De Bardeleben before he received the telegram from Adams that he had sold them on the terms originally named to him.

Touching the first interview between Adams and McComb on the 27th in New York, the latter, a witness for the former, said: 'That he was acquainted with the parties to this...