GARDNER ET AL.
Appeal from Trial Term, New York County.
Action by William Gardner and another against Henry Clay Pierce. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. Reversed, and new trial granted.
Marvin W. Wynne, for appellant.
Charles De Hart Brower, for respondents.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, McLAUGHLIN, and SCOTT, JJ.
The plaintiffs were employed by the defendant to design and superintend for him the construction of a yacht, for which he agreed to pay them 5 per cent. of its cost. Under a [116 N.Y.S. 156] contract for the construction, it was to be completed on or before the 1st of January, 1902. The plaintiffs made several alterations in the plans during the progress of construction which were not satisfactory to the defendant, in consequence of which he, on the 9th of December, 1901, notified them that the yacht was not being constructed according to agreement, that it was unsatisfactory, and demanded that work upon it be stopped, which was apparently done. On the 13th of March, following, he sold the boat to one A. C. Burrage for $72,000, who assumed all contracts relative to its construction, and this action was brought to recover commissions alleged to have been earned by the plaintiffs in making the sale. The complaint alleges that the defendant employed plaintiffs as brokers to sell the boat, that the sale resulted from their services, for which the defendant agreed to pay, and the same were reasonably worth, the sum of $3,600, being 5 per cent. of the purchase price. The answer denied the material allegations of the complaint, and also set up a counterclaim, which is not involved in this appeal. The jury rendered a verdict in favor of the plaintiffs for the full amount claimed, with interest, and from the judgment entered thereon and an order denying a motion for a new trial, defendant appeals.
I am of the opinion that the verdict, if not against the evidence, is so much against the weight of it that the judgment cannot be sustained. At the trial it appeared that on the 10th of December, 1901, the day following the one on which the defendant had notified the plaintiffs that work upon the boat must stop, the parties met at the Hotel Netherland in the city of New York. One of the plaintiffs, Cox, was unable to fix the date of this meeting, testifying that it was some time between the 10th of December, 1901, and the 24th of February, 1902. The other plaintiff, Gardner, was, however, able to and did fix the date as the 10th of December. Their claim is predicated upon what is alleged to have then taken place; each of them testifying that the defendant said the best way out of the difficulty was for the plaintiffs to sell the boat, which, by his authority, they did. Cox testified: That after the interview he learned of Burrage as a possible purchaser through a Mr. Hutchinson, of Boston, to whom he sent plans and a description of the boat; that he subsequently told the defendant that Burrage would like to purchase the boat and tried to see the defendant and have him fix a price at which he would sell; that he had several interviews with a friend of Burrage's, one Smith, with reference to the purchase; that he also showed an agent of Burrage's, one Bemis, over the boat, and at his request prepared and sent to Burrage, who was in Californial, a detailed description of it; and that shortly thereafter he made the purchase.
But assuming the plaintiffs did all that is claimed in this respect, it does not establish that they were acting for the defendant, or that they were the procuring cause of the sale for him so as to become entitled to the commissions claimed. On the contrary, the correspondence between the parties, it seems to me, conclusively establishes that the plaintiffs never were employed by the defendant or authorized in any way by him to sell the boat. On the 17th of January, 1902- [116 N.Y.S. 157] and the plaintiffs, as we have already seen, claim they were employed on the 10th of December, 1901-they wrote the defendant stating:
" About six weeks ago we wrote you concerning your boat, the only answer to which we have had is a letter from you stating that you were too busy to take the matter up.*** Last Saturday, having an inquiry for a similar boat, we telephoned you, *** when you said you would see us Monday, as we told you that our client would be here on Tuesday.*** Our client has left for California, and we will have to send any information to him there, which you will perceive renders any negotiations more difficult."
The " client" referred to was undoubtedly Burrage, and the only meaning that can be given to this letter is that the plaintiffs were representing him as broker in purchasing the yacht, and not the defendant in selling it. The statements contained in the letter are inconsistent with the claim that the relation of broker and principal existed between the plaintiffs and the defendant. Ten days later the plaintiffs again wrote the defendant, as follows:
" We called you on the ‘ phone this morning in relation to the sale of ‘ Orizava.’ [This was the name of the boat.] *** You are losing, by delaying seeing us, the best chance we know of selling ‘ Orizava’ at a satisfactory price, and we cannot but feel that you should surely give us some attention in so important a matter to yourself as well as us. However, you are fully conversant with the whole situation, and we will await your instructions, both as to the further details of the construction and your wish in regard to disposal of her."
The statement that the plaintiffs would await the defendant's instructions " as to the further details of the construction" or his " wish in regard to disposal of her" shows that the plaintiffs did not then suppose they were authorized to sell the boat, and the instructions which they desired were in the alternative either to construct or sell, and, if they had already been employed to sell, why the necessity for any instructions? On the 21st of February, 1902, they again wrote the defendant, but the letter referred solely to alterations in the boat and said nothing whatever with reference to selling. To this letter, two days later, the defendant replied, blaming the plaintiffs for the plans, and concluding by saying:
" There is nothing to be gained except annoyance and vexation by continuing this sort of controversy."
This was the last communication which the plaintiffs received from the defendant, and it is very significant that in neither of these letters was there a single reference to the employment of plaintiffs to sell the yacht. Immediately following this correspondence, the defendant went to Palm Beach, Fla., and on the 24th of ...