Pullen v. Baltzer

De Courcy, J. The first two counts in the declaration are for the recovery of a certain sum as commission for finding a purchaser of the capital stock of the L. L. Bates Company, all of which was owned by, the defendant, Baltzer. The trial judge directed a verdict for Baltzer on these counts; and the correctness of that ruling is not now before us. The jury returned a verdict for the plaintiff on the third count; which is upon an account annexed for services rendered and work and labor performed. The main exception of the defendant is to the refusal of the judge to direct a verdict for him on this count. There was evidence on which the jury could find these to be the facts: The plaintiff was president of the Remington and Sherman Company, manufacturers of bank vaults, safes etc. In July, 1918, he was informed that the defendant would like to dispose of his business. A conference between them was arranged, and was held at Boston on August 27. Baltzer asked the plaintiff to take up the matter; gave him data as to the assets and liabilities of the L. L. Bates Company; suggested the Sargent and Greenleaf Company as a possible buyer; and said he wanted $15,000 for his stock. The plaintiff said he would ask $16,000, the excess to go to the [423] Remington and Sherman Company. He then said: "Mr. Baltzer, as a personal matter, if I put my personality into this matter and push it through, it is worth a consideration.” To this the defendant replied, “I will be glad to pay 5 per cent on what I get, the $15,000.” In the cross-examination of the plaintiff appear these questions and answers: Q. "Do you say that he promised you $1,000 for your company and $750 for you? ” A. “ If the sale went through on the $16,000, yes.” — Q. “Your contention is that Mr. Baltzer had employed you to find a possible purchaser for his business, isn’t it?” A. “He wanted me to find a purchaser, yes.” Subsequent to this interview, the plaintiff wrote to the defendant with reference to his negotiations with Sargent and Greenleaf; and in the letter he stated: "should negotiations result favorably in closing the deal, I would naturally expect you to pay me a basis of say 5% on the figure you accept.” The reasonable construction to be placed on the testimony most favorable to the plaintiff is, that under the agreement between him and the defendant he was to be paid for his services only in case he effected a sale, or at least produced a customer who was able, ready and willing to purchase the stock of the L. L. Bates Com-pony on terms authorized by his contract of employment. The first two counts were based upon this theory. As above stated, the question whether the plaintiff had a right to go to the jury on these counts is not before us. But the agreement between the parties being the ordinary brokerage contract, the plaintiff was not entitled to recover on a quantum meruit for the services he rendered. As was said in Cadigan v. Crabtree, 179 Mass. 474, 480: “A brokerage commission is earned if the broker, without devoting much, or any, time to hunting up a customer, succeeds in procuring one; and it is equally true, on the other hand, not only that.no commission is earned if a broker is not successful, but a broker is not entitled to any compensation, no matter how much time he has devoted to finding a customer, provided a customer is not found.” Noyes v. Caldwell, 216 Mass. 525. Ballou v. United Button Co. 241 Mass. 457. The defendant had a right, acting in good faith, to revoke the authority of the plaintiff; and it is not contended' that Pullen was the efficient cause of the subsequent sale to the York Safe and Lock Company. Leonard v. Eldridge, 184 Mass. 594. [424] The exceptions to evidence have not been argued, and need not be considered. The defendant’s motion for a directed verdict on the third count should have been granted. Exceptions sustained.