delivered the opinion of the court.
This suit was brought upon the theory that a contract was - made between plaintiff and the defendant for commissions upon which the plaintiff was entitled to recover. Counsel for plaintiff in error very properly say in argument that the agreement between plaintiff and defendant in error for the placing with the latter of the insurance in question is almost wholly, if not quite, contained in the correspondence between the parties. There is no conflict of evidence in the case. As to the terms of the agreement the evidence is clear and certain. The agreement was that if Helmick should be the first one to furnish the defendant with the schedules of the railroad companies mentioned upon which they desired insurance to be written for the year 1896, defendant would bid only through plaintiff, and if the insurance was awarded to defendant and taken out, defendant would pay plaintiff seven and a half per cent, commission upon the premium.
While the plaintiff endeavored to obtain from the defendant an agreement to the effect that the insurance should be placed solely through him by his letter of November 30, 1895, in which he says: “About December 10 we will offer you five different schedules, but we see no way in which we can be protected unless we give you the names of all the roads whose schedules we will present to you and you close the same to us against competition from this date,” this was promptly declined in the letter of defendant in reply, dated December 2, 1895. In that letter the defendant gives very good reasons for adhering to -the rule of “First come, first served,” and further says: “We can simply say to you, as I , said in Chicago, that upon receipt of the schedules from you, if we have not already received them from other parties, and be open, we will send you our bid and thereafter will not bid to anyone else.”
On December 3, 1895, probably before he had received the letter of defendant just referred to, plaintiff again tried to have defendant agree to secure him against competition and make him the sole broker for the insurance, in his letter of that date, but without success; for, in reply to this letter, under date of December 5, 1895, the defendant said: “We hold ourselves absolutely open on all these roads to whomsoever shall first present us with the' schedules.”
The agreement was therefore left by this correspondence in substance as we have above stated it, the defendant in every letter adhering to its first position in all that it said as to the terms of the arrangement. The correspondence clearly shows that the defendant declined to agree that the insurance on the railway lines mentioned should be placed through Helmick solely; but that the defendant would not bid through any other agent upon the schedules received first from Helmick, reserving the right to the defendant in all eases to bid through the party who should first furnish the schedules upon which bids were invited by the railroad companies.
The next inquiry is what was done by Helmick under this agreement. It appears that Helmick furnished to defendant the schedules of the railroad companies for 1895. It does not appear that the companies desired insurance on these schedules for 1896. It is to be inferred that they did not, for the reason that they prepared schedules for 1896 and in the nature of things these schedules were being prepared during the time the correspondence was progressing. It appears from the schedules for 1896 that the companies desired insurance on about $320,435 less property than that enumerated in the schedules for 1895. The schedules also showed changes in the location and in the character and class of property.
The record shows that the defendant promptly bid on the 1895 schedules, and that the bid was afterwards returned upon Helmick’s statement that 750 leased box cars had been returned to the owners, and that Helmick never communicated this bid to any official of the railroads at any time. Although Helmick had received the 1896 schedules on January 8, 1896, in his letter of January 11, 1896, he notified defendant that bids on this insurance must be in by January 15, 1896, he never furnished to defendant the schedules upon which the railroad companies desired insurance for the year 1896, so that it could formulate a bid thereon. Defendant received the 1896 schedules from Bathbone & Oo. on January 11, 1896, and forwarded its bid thereon to Detroit on January 14, 1896, through or on behalf of Bathbone & Oo.
It clearly appears, therefore, that plaintiff did nothing under the agreement to entitle him to the commissions sued for, “and the instruction given by the Circuit Court to find a verdict for the defendant was properly given.
The judgment is affirmed.
Affirmed.