HERBERT I. HALL, Respondent,
FRENCH-AMERICAN WINE COMPANY, Appellant.
APPEAL by the defendant, the French-American Wine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 9th day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.
Warren Bigelow, for the appellant.
Frederic R. Kellogg, for the respondent.
On the 25th of August, 1908, the plaintiff and the defendant entered into a written contract, whereby the latter employed the former as its sole agent for the sale of wines and brandies, at prices and upon terms and conditions to be fixed by it, in the States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey and the District of Columbia. The plaintiff was to receive $1 a barrel on all sales made either by him or by the defendant directly within that territory, and he agreed to push the sale of the defendant's products in every way possible, to extend its business and protect its interests to his utmost ability, to make prompt remittances, and to account for all money and property in his hands belonging to it. He was to give a bond in the sum of $5,000 for the faithful performance of his duties, and it was agreed that the contract should remain in force for one year, and that 'if in that time the sales in the above States shall aggregate four thousand barrels, (4,000) from the date hereof, it is to be continued for four (4) years in addition, or until August 25, 1913.' On the 25th of August, 1909, the defendant discharged the plaintiff, and this action is to recover damages therefor. One of the questions in dispute was whether the sales in plaintiff's territory amounted to 4,000 barrels. It was admitted that 3,436 barrels were actually delivered on
orders taken by the plaintiff, and that the defendant sold directly within that territory 382 barrels, making a total of 3,818 barrels. The plaintiff asserted that he was entitled to credit for a number of unfilled orders, any one of which was sufficient to supply the shortage, viz., an order for 480 barrels procured from one Lupo, upon which 250 barrels remained undelivered; an order for 400 barrels procured from one Valenza, upon which 234 barrels were undelivered; an unfilled order obtained from one Conte for 180 barrels, to be computed with any one of a number of small unfilled orders, and an order for 500 barrels obtained from the Independent Wine Company. The Lupo order was not filled for the reason that Lupo failed and absconded. The Valenza order contained this provision: 'Delivery to be made at my option in lots of not less than 25 bbls. at a time, the total quantity to be taken within 6 months, but if there should be a balance at the expiration of 6 months, you will grant me an extension of time.' The defendant had previously directed the plaintiff to accept the Valenza order only in case the customer would agree to accept delivery of 40 to 50 barrels weekly. The Conte order was not included in the plaintiff's bill of particulars. It appears that the plaintiff had sold and delivered a quantity of wine to Conte, and, a dispute having arisen, had made him certain allowances, and had written the defendant, saying that those allowances had been made for the purpose of getting an order from him for 180 barrels. No such order, however, was ever submitted by the plaintiff. The plaintiff testified that the Valenza and Conte orders were not filled because the wine in his possession turned sour; but there is no claim that he ever requested defendant to furnish additional wine with which to fill those orders. It is unnecessary to consider separately the small orders, as it is not claimed that their aggregate amount is sufficient to make up the deficiency of 182 barrels. While the plaintiff claimed to have obtained an order for 500 barrels from the Independent Wine Company, no such order was ever submitted to the defendant, and an officer of that company though not the one with whom the plaintiff claimed to have made the arrangement, testified that it was not in a position to give such an order, and that it had not
given one to his knowledge. The plaintiff did not even inform the defendant who his customer was, but on August 24, 1909, wrote the defendant's representative, saying that he had received an order for 500 barrels of claret, deliveries to be made at a minimum rate of 100 barrels a month, the terms of sale to be, according to the plaintiff's testimony, '241/2c per gallon F. O. B. cars California. Cash on arrival.' The said representative testified that the letter, when delivered to him, read 'F. O. B. dock New York.' He indorsed on the back of the letter a refusal to accept on the ground that the price was too low and returned it to the plaintiff. All of the foregoing alleged orders were submitted to the jury, with the instruction: 'If this man Hall, under this contract, sold wines, he performed his duty if he obtained, in good faith, orders for wines or brandies from purchasers within his territory, upon the terms authorized or accepted by the defendant; so that if he got these customers whose wines were undelivered, made a contract to sell wines to them within the terms which he was authorized by the defendant to make, if the terms of his sales to these parties were authorized or were accepted by the defendant he is entitled to his commissions upon those sales whether the goods were afterwards delivered or not.' The exception to that charge presents the question whether an order accepted by the defendant was a sale within the meaning of that contract.
There can be no doubt that in law, and even in common acceptance, a sale of merchandise involves the transfer of title, and that an executory agreement to sell is not a sale. The word 'sale' is thus defined by the text writers: 'Sale, or exchange, is a transmutation of property from one man to another, in consideration of some price or recompense in value.' (1 Shars. Black. 446.) 'By the common law a sale of personal property is usually termed 'a bargain and sale of goods.' It may be defined to be a transfer of the absolute or general property in a thing for a price in money.' (Benj. Sales [7th ed.], 1.) 'A sale is a transfer of the absolute title to property for a certain agreed price.' (Story Sales, 1.) 'A sale of personal property is the transfer, in pursuance of a valid agreement, from one party, called the seller, to another, called the buyer, of the general or absolute title to a specific chattel for a price or a consideration
estimated in money.' (1 Mechem Sales, 3.) Kent says 'Of the Contract of Sale' that 'A sale is a contract for the transfer of property from one person to another, for a valuable consideration * * *. The thing sold must have an actual or potential existence, and be specific or identified, and capable of delivery, otherwise it is not strictly a contract of sale, but a special or executory agreement.' (2 Kent's Comm. [ 14th ed.] *468.) According to Kent's definition the orders in this case were special or executory agreements, not contracts of sale.
The plaintiff, however, contends that a broker to sell earns his commission when an enforcible contract is made and that, as the plaintiff was merely employed as a broker, the word 'sales' should be construed to include an executory contract. It is true that one employed merely as a go-between has performed his work and earned his commission when he has produced a purchaser acceptable to his principal. The familiar cases mostly relating to sales of real estate need not be cited. I do not say that a different rule applies to an agency to sell real estate from that applicable to one to sell personal property. But there is a distinction between an executory contract of purchase and sale of real property and an accepted order for a ...