Rand v. Cronkrite

Mr. Justice Waterman delivered the opinion of the Court. The question presented by this case is almost entirely one of fact, viz: Did the appellees make such a sale of the property or stock of appellants as entitled them to compensation therefor ? Appellees did not make a sale in accordance with the written power of attorney, which sale was to be for $2,000,000 cash in hand and $1,500,000 in paid up stock of a corporar tion capitalized at $4,500,000; this is not claimed. Appellees claim that a new arrangement was made, under which they were to sell the property for $1,000,000 cash, $875,000 in six per cent debentures, $437,000 in preferred stock bearing eight per cent, and $438,000 in common stock—total $2,750,000. Did they make such sale ? The proposed agreement for sale procured by the appellees, recited that the purchaser intended to form an English company with a capital share of 460,000 pounds, divided into 46,000 shares of ten pounds each, of which 23,000 should be preferred shares, entitled to a cumulative preferential dividend of eight per cent per annum, and the remaining ordinary shares with power to borrow not exceeding the sum of 230,000 pounds by an issue of debentures. The consideration for the sale was to be 567,000 pounds sterling, provided that if the English company was formed the purchase money as to 180,000 pounds might be satisfied by the allotment of debentures of the English company, and as to 90,000 pounds by the allotment of preference shares in the English company to that nominal amount, and as to 90,000 pounds by the allotment of ordinary shares in the English company. The balance of 207,000 pounds was to be paid in cash as follows: one-tenth within fourteen days of issue of the English company’s prospectus, and the balance by three equal installments, the first within seven days of the first allotment of shares in the English company, the second within six weeks, and the balance within ten weeks after such allotment. The several sums agreed to be paid, other than the final balance, and the interest thereon, to be paid in, the first to the-bank to the joint account of the vendors and purchaser, to remain in escrow awaiting the completion of the purchase. The purchaser was, within forty-five days of the receipt by him of a report on the properties, to procure the incorporation of the said English company, and as soon as was reasonably prudent, having regard to the then state of the London money market, offer by a prospectus for public subscription the whole of the shares in the English company, less those to be taken by the vendors, also all the debentures, less those to be taken by the vendors, provided that if the purchaser should be unable to satisfy the vendors within four months from the date of the said report that responsible persons, other than the vendors, had agreed to subscribe for shares and debentures deemed satisfactory to the vendors, or that shares and debentures to the like amount were underwritten, then the vendors might rescind the agreement, and if any part of the purchase money should remain unpaid for six months from the date of the said report, the vendors might by notice rescind the agreement. We do not see how it can be seriously contended that such proposed sale was a fulfillment of an undertaking to sell for $1,000,000 cash and $1,750,000 in stock and debentures. The proposition was perhaps fair enough, but appellants did not see fit to accept it, and they did not authorize appellees to sell or to procure an offer under which appellants might never receive either cash or anything else of value. The offer of payment, so far as it had value, was wholly contingent upon the success that might follow an offer for sale of the stock and debentures of the proposed English company. It is said that Mr. Eand did not put his refusal to accept the offer upon the ground that it was not in accordance with the terms he had given appellees. If this be so, it did not make the offer a compliance with such terms. Appellees claim to have procured a bona fide offer of purchase from a responsible party on the terms proposed by appellants. The question is, did appellees procure such offer, not what appellants said about the proposal. Appellees urge that appellants having placed their refusal upon the ground that the time for making a sale had expired, can not now object that they had never authorized a sale upon the terms proposed; and appellees cite the remark of the Supreme Court of the United States appearing in Railway Co. v. McCarthy, 96 U. S., page 258-267, that “ where a party gives a reason for his conduct and decision, touching anything involved in the controversy, he can not after litigiation has been begun, change his ground and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.” As applicable to the facts of that case the statement was proper and pertinent, but if cited as a declaration of the law as to all controversies, it is incorrect and entirely unsupported by authority. It is not the case that if one agree to purchase 100 fat sheep if delivered to him in thirty days, he is responsible in damages when 100 lean hogs are tendedlo him in twenty days, if the only objection he makes to their reception is that the contract has expired. ¡Nor is one who borrows money, agreeing to pay in six months with interest at the rate of four per cent per annum, bound to pay interest at the rate of seven per cent per annum because when, at the end of six months, payment with such interest is demanded, his only objection is, that the debt is not due. The principle invoked by appellees applies only to defects in form, matters of detail, objections which a party could easily have, and it is to be presumed would have, removed had they been objected to, so that an after insistence upon them is an injustice, they not being of the substance of the contract. Johnson v. Oppenheim, 55 N. Y. 291; Bigelow on Estoppel (5th Ed.), p. 662; 28 Am. and Eng. Ency. 530, and cases cited. There is no authority for holding that a mere arrangement for a sale, with no cash paid down, but a condition that if at the end of six months all the cash has not been paid, the vendors may rescind the contract, is a fulfillment of an authority to sell for, among other things, $1,000,000 cash. That where, by express or implied contract, an agency has been created to endure for a definite period, it may not be terminated by the principal unless for the agent’s default, or by virtue'of some agreement to that effect, without liability to the agent, is the case. And where, though the agency is not for a definite time, yet the act is one which requires time and labor for its completion, the agent is entitled to a reasonable time within which to complete his undertaking. Mechem on Agency, Sec. 620; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Warren C. & M. Co. v. Holbrook, 115 N. Y. 586; Day v. Porter, 60 Ill. App. 386. And if the principal unjustifiably terminate the agency, he is liable to the agent for the damages occasioned thereby, as in any other case of a breach of a contract. Mechein on Agency, Sec. 621. We are not, however, called upon to say what the rights of appellees would have been had they, when the proposed contract of sale was rejected, gone on and effected a sale in accordance with the authority given to them. Instead of doing this, or insisting upon their right so to do, they stood upon the proposal by them procured and tendered, sending to appellants the following letter: " Gentlemen ; You authorized us to procure for you a purchaser for all the property belonging to Rand, McRally & Company, a corporation, upon certain terms and conditions. After much labor and expense, we have procured a purchaser, who is ready, able and willing to purchase the property of the corporation for the price and upon the terms and conditions named by you, and we have a contract signed by him for the purchase of the property, which we are ready to present to you for signature. Will you kindly advise us, upon the receipt of this letter, when and where we can meet you and close the matter up ? Yours truly, B. F. Croekrite & Co.” Thus claiming that the terms of sale agreed to by Mr. Behr were such as appellants had agreed to accept. Appellees rested and rest upon this proposition; they do not claim to have done more than this. Such proposition was not a fulfillment of the undertaking of appellees. The judgment of the Circuit Court is reversed and the cause remanded.