Amory v. Washington Steamboat Co.

Lambert, J. (dissenting):

. The plaintiff alleged, as 1ns cause of action, that the defendant, a corporation, was in the years 1899, 1900 and a portion of 1901 the owner of certain steamboats, then located in the city of Washington ; that Henry Hart, the president of the corporation* and its authorized agent, requested the plaintiff to find a purchaser willing and able to buy certain properties of the defendant; that the plaintiff entered into a contract with the defendant whereby it was agreed that the property should be placed in the hands of the for*824mer for sale, and that if the plaintiff was successful in finding a purchaser willing and able to buy such property of the defendant through, the plaintiff, said plaintiff was to look for his commissions from said purchaser, and not from the defendant; that this.agreement was limited by a proviso that if the defendant effectuated a sale of the said .properties with a purchaser procured by plaintiff, except through and by the consent of the plaintiff, then in that case the defendant was to become liable to the plaintiff for such commissions as. the plaintiff would have become entitled to from the prospective purchaser, which iHs established in the present case would have been-$5,000. - There is no -dispute that the plaintiff did find • a purchaser who was willing and able to buy two steamboats of the defendant, which appears to have constituted the chief property owned by the defendant and which it was desired to sell, and that such proposed purchaser agreed to pay to the defendant the sum of .$40,000 for such steamboats; that the plaintiff communicated súch offer to the defendant through its president, Mr. Iiartj and that the latter authorized the closing of a, contract upon this basis; that the. plaintiff did enter into a contract with his proposed purchaser; that such contract w.as delivered to Mr. Hart, and that the defendant corporation met. and formally ratified this contract by authorizing the sale of the steamboats, and that subsequently the defendant, without the knowledge of the plaintiff, completed this sale to the plaintiff’s purchaser,-, upon substantially the same terms and conditions as those involved in the plaintiff’s contract of sale, the only difference being iii a present payment of $1,000 on account of the sale, with a consequent lessening of the deferred payments, which were to be made on. the same dates as. those agreed upon in the plaintiff’s contract. In connection with the negotiation at'.which the plaintiff’s purchaser agreed to pay the defendant $40,000 for the steamboats, there was- an agreement on the part of the proposed purchaser to pay the plaintiff the sum of $5,000 as a commission, and it appears that this fact was not communicated to Mr. Hart or to the ' defendant, but as the plaintiff’s agreement With the. defendant was merely to find a purchaser who would pay to the defendant a satisfactory price, and as the defendant agreed to accept $40,000, we cannót fail to agree with the learned court' at Trial Term, in its charge to the jury, that the defendant *825had no interest, in this matter. The defendant was not bound to take $40,000 for its property, but if it was willing to accept that sum, and did agree to accept it, knowing that the plaintiff had an interest in securing the largest possible compensation for his services, it has no reason to complain because the latter did not tell just how profitable the transaction promised to be. The plaintiff himself might have purchased the property at the figure named, if he could have arranged the payments, and no one would have a right to complain, and the case is not altered because the plaintiff found another party who was willing to pay him the sum of .$5,000 in addition to a sum which the defendant agreed to accept as a satisfactory price.

It is urged that there was included in'the agreement between Hart and the plaintiff that there was other property connected with the steamboats which was also to be sold, and that it does not appear that the entire contract was pierfor'med. The answer admits that Hart and the plaintiff entered into an agreement which in substance provided that if said plaintiff found a purchaser willing and able to buy said steambpats, he, said plaintiff, was to look for his commission from said purchaser and not from the defendant, but alleges that said agreement included other property besides said steamboats.” But this contract was not a contract on the part of the plaintiff to sell the steamboats and this other property.; it was an agreement to attempt tó find a purchaser for any or all of the property who should be satisfactory to the defendant, and his commissions were to come from the purchaser. The plaintiff did not undertake to sell all of the property; that was not the condition of his employment. The answer* practically admits that if he found a purchaser willing and 'able to purchase the. steamboats, he was to have whatever commission he could induce such purchaser to pay above the contract price, and that is what the plaintiff is suing for. He was not bound, in any event, to sell all the property to the same purchaser; there is evidence in the case from which the inference might be drawn that the plaintiff did, in fact, make a contract with a third party for the sale of the remainder of the property, and there is no presumption that he did not, or that he did not get the commission which he might have earned upon such a sale. In the case at bar that would have nothing "to do with his. right to commissions on the sale of the steamboats,, and as the pleadings stand *826it is clear,, it seems' to' us, that the plaintiff had performed his agreement so as to he entitled to the commissions on the steamboats when-he had-found á purchaser, who was satisfactory to the defendant, and we have nothing to do with the other transactions, for it is not claimed that any commissions are due thereon.

. It seems equally clear that Burt, as- the. president of the defendant company, did interfere with the transaction in such a'way as to prevent the plaintiff collecting his commissions from the purchaser, Bandall: The contract of the plaintiff with Bandall, in which the latter agreed to pay $4(1,000 for the steamboats, and in relation to which the collateral contract fo'r commissions, aggregating $5,000 was made, was thrown aside and a new contract was made and entered into, entirely independent of the original contract, with its collateral agreement. It is true, of Course, that the new contract was, in substance,, the original contract,, only varied in details, but it was not the contract to which the plaintiff was obliged to refer as a part of his transaction with Bandall as a basis- for his. recovery from the latter,' That is the essence of the.defendant’s interference; it took advantage of the plaintiff’s negotiations, adopted in subr stance the' very contract he had made, but varied it in those particulars which required a new contract, and as the plaintiff had no relation to such -new contract, it gave hiin no standing to enforce his collateral contract for commissions. . It operated as a fraud upon his rights, and he had specially contracted that in such, an event the defendant should be ' liable for the commissions., To reverse, this judgment is to deprive. the plaintiff of, his contract rights as established after a trial before a juryj and it ought not to be done. -

■We' do not agree with the contention of the defendant on appeal that the" contract proved was with Henry Hart' persohai-ly. ■ While it is true, of course, that the mere fact that Henry Hart was the president of the corporation, and the owner of substantially all of the stock, did not merge the corporation in the individual, yet from the plaintiff’s course ■ of dealings with Mr. Hart, and the- fact' that the contract of sale as originally made by the- plaintiff was substantially adopted by the defendant, and that the defendant had the -advantage of the plaintiff’s .efforts, there is an abundance of evidence that jMr, H^'t acting in behalf of the defendant, and. *827that he was authorized to act for the defendant in contracting with the plaintiff. The contract as made did not involve any liability on the part of the defendant, except in the contingency that it should interfere and take advantage of the efforts of the plaintiff, thus excluding him from the opportunity of getting his commissions from the purchaser," and the corporation having interfered and secured the sale of its property, through the plaintiff’s efforts it can hardly be justified in contending that it is not the responsible party to this action. It is true that there is much in the evidence which might be construed to mean that the contract was with Mr. Hart, but a.perusal of all the testimony leads conclusively to the conviction that Mr. Hart was "referred to at all times in his capacity of president and practical personification of the corporation, and the evidence is to be understood in this sense.

Jt seems clear,, likewise, that the contention of the defendant, on which many of its exceptions are based, that the contract was expressed in two certain letters- in evidence, is untenable. These letters do not profess to reduce the terms of the contract to writing, but they refer to understandings-between the plaintiff and one Faulhaber, Mr. Hart’s private secretary, the writer of one of the letters, and simply indicate that Mr. Hart agreed to the understand-, ing of the contract which the plaintiff and Faulhaber "had arrived at. No one reading tile two letters could understand the contract, and it is conceded there was a contract, and the learned court at Trial Term was correct in holding that the agreement between the parties depended upon these letters and the negotiations which preceded them. . If the exceptions are viewed in -the light of a contract resting partly in parol, it will be seen that there is no material error in the case.

The case went to the jury on the 7th. day of November, 1906. The court ordered a sealed verdict. The. following morning,. November eighth, the sealed- verdict, was opened and read, and was found to be -simply a general verdict in behalf of the plaintiff, without naming the amount. The court asked the foreman: “You find . a verdict for the plaintiff for the full amount of $5,000 ? ” The foreman responded: “ $5,000.” One of the jurors interposed the remark that no amount was agreed upon,” and another juror stated •that “thpre was no ^mopnt piehtioned,” The coiirt refused, to *828grant a new trial, stating that there was a mistrial, and suggested that the parties go before the court sitting in the calendar part and have the casé set down for trial. Subsequently, and on the' 13th day of November, 1906, plaintiff obtained an order, returnable November fifteenth, before the trial justice who had presided, commanding the defendant to show cause why the “ informality in the' sealed verdict * * * -should not be corrected by inserting therein the amount for which said action was brought, and for which the jury were instructed to find if they found their verdict in favor of the plaintiff, to,wit, $5,000.” Annexed to the*order to sliow'causé was the affidavit of eleven of the jurors, not including, the foreman, who had announced to the court that the verdict was for $5,000, to the effect that there was no contest as to the amount for which they should find, “ as the plaintiff was suing for a certain sum stated in his contract, and it was our understanding that if the plaintiff were allowed to recover it would be for the full sum for which he sued, viz., $5,000.” On the 5th day of December, 1906, at the next term of the trial court, an order was entered correcting the sealed verdict in harmony with the charge of .the learned, court; and with the verdict of the jury as that body undoubtedly intended it. At the time of entering this order a motion was made for a new trial on the minutes and denied, and a motion was made to set aside the verdict, as amended, on a variety of grounds, which fully raise'the question of the power of .the court. :

• We liave'recently held that where a motion was made to compel the jury to retire and bring in a verdict in accord with the charge of the court, and such motion was denied, and no exception was taken to such denial, there was no power in the Court to subsequently amend the verdict by adding interest, which the jury had specifically declined to include in the verdict (Isbell-Porter Co. v. Braker, 120 App. Div. 354), but that is quite a different case from the one presented'by this record. The ease .now^before us cannot be distinguished in any important particular from that of Hodgkins v. Mead (119 N. Y. 166),.which was an action upon a contract where the issue was whether the plaintiff was entitled to recover for his services and where the amount was not in controversy. The learned court charged the jury, as in the case at bar, that if the plaintiff was entitled to recover at all he was entitled to *829a certain amount, which was mentioned, and the jury having found for the plaintiff generally without naming the amount, the practice adopted in the case at bar was applied, and the verdict was corrected by inserting the amount which the court had charged as being the sum which the plaintiff was entitled to recover, if at all. The cases are so nearly alike in their facts that the statement of one might almost be taken for the other, and the discussion of the court in that case makes it unnecessary to do more than call attention, to the opinion for the reasons which should be controlling here. Indeed, this court had already, in an opinion by Mr. Justice Ingraham, adopted the reasoning of the court in the case cited and applied it in a case involving at least equal uncertainties. (See Lowenstein v. Lombard, Ayres & Co., 2 App. Div. 610; Duerr v. Consolidated Gas Co., 104 id. 465 ; Cruikshank v. Cruikshank, 38 id. 580; Clark v. Lude, 63 Hun, 363.)

The judgment and orders appealed from should be affirmed.

Order correcting verdict and judgment entered on verdict as corrected reversed and new trial ordered, with costs to appellant to abide event. .