Love v. Scatcherd

LURTON, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. Each party requested the court to instruct the jury to return a verdict in his favor. Nor were there any requests for an alternative charge as in Minahan v. Grand Trunk Western Ry. Co., 138 Fed. 37, a recent case decided by this court. This was tantamount to an affirmance by each party that there was no substantial conflict in the evidence and the facts raised only a question of law. Beutell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654; Phenix Ins. Co. v. Kerr, 129 Fed. 723, 64 C. C. A. 251, 66 L. R. A. 569; Minahan v. Grand Trunk Western Ry. Co., supra. The only questions for our consideration are, first, whether there was any substantial evidence upon which a verdict for the defendant might have been rested; and second, whether, upon the settled facts 'of the case, the court erred in directing a verdict against the plaintiff. Upon a careful consideration of all of the facts in the case we "reach [7] the conclusion that there was no substantial conflict in respect of. the facts of the case. The claim of the plaintiff that he was entitled to recover a commission for the sale of the defendant’s land depended at last upon the proper interpretation of Love’s letter of August 15, 1903, and Scatcherd’s reply thereto of August 18th, both of which have been set out in the statement of the case. That Westbrook was a purchaser procured by the direct solicitation of Love is beyond dispute; that Love induced him to correspond direct with Scatcherd, is not denied and that finally Love went to Buffalo and there brought the minds of buyer and seller together upon an optional sale and purchase is plain. Counsel for defendant in error frankly admit that the defense to Love’s action is accurately stated by Scatcherd in his letter of December 19, 1903, to Love. That letter was in these words: “Buffalo, N. Y., Dec. 19, 1903. “Mr. A. M. Love, Jonesboro, Ark. — Dear Sir: Yours of the 14tli received. Tlumk you for your good wishes at this time and I beg leave to state that I do not see wherein I owe you 5 per cent, in my trade with Mr. Westbrook. I wrote you in August that if you gave me the names of satisfactory parties and I traded with them I would protect you. You did not give you (me) the name of Mr. Westbrook, he applying himself and X replying direct to him. X did not even know that you knew him, and you came here not at my solicitation, but representing Mr. Westbrook, as I understood it, to obtain for him the written option which I gave. 1 therefore can not see that I am under any obligation to pay you 5 per cent. Wishing you the compliments of the season, I remain, “Yours truly, John N. Scatcherd.” The plain meaning of the Scatcherd letter of August 18th was that if Love should put him “in communication,” with a purchaser and a sale should result that he should have a commission of 5 per cent. At Love’s solicitation Westbrook opened a correspondence with Scatch-erd and a sale was the direct result. That Scatcherd was not at the beginning aware of the fact that Love had induced Westbrook to negotiate is not of the essence. Before the feale was concluded he became aware of Love’s connection with the matter through Westbrook’s letter and option handed to him by Love in which Love’s instrumentality was plainly stated. In the light of this letter Scatcherd is charged with notice of the fact that Westbrook was the name of a person furnished by Love. The most that can be made out of Scatcherd’s statement that his “understanding” was that Love represented Westbrook is that Scatch-erd put a wrong interpretation upon the contract. His “understanding” was not competent and from the ruling of Judge McCall we must understand that it was so regarded and ruled when objected to. Nothing which occurred at Buffalo estops Love from claiming his commissions, even if a waiver or estoppel is competent under a plea of non assumpsit. The uncommunicated understandings of Scatch-erd furnish no rule by which the rights of Love are to be controlled. Ii Scatcherd understood by inserting “net cash” in the option he gave Westbrook, that he was to pay no commission to Love, he should have said so. On its face it meant that his price of $10 per acre meant [8] “net cash” as between buyer and seller. Love was not the buyer. He did not represent the buyer. He was endeavoring to procure an option which should bring about a sale, but the option was to be given to the buyer by the seller. Ten dollars “net cash” meant that the buyer should pay that net price to the seller. But what about the agent and his commissions? Net cash did not necessarily imply either that Love should have no commissions or that the buyer should pay them. The understanding of Scatcherd may have been one thing and that of Love, another. Neither asked an explanation. Each stood upon his own view of the contract. If Scatcherd in fact believed that Love represented the buyer he would not owe commissions to him and could not have had the matter of commissions in mind, for he did not suppose he would owe any. If upon the other hand he knew or should have known that Westbrook was a customer put in communication with him by Love, he knew he was under contract “to protect him” on a commission of 5 per cent., as stated in his letter of August 18th. It was upon this contract that Love stood. If Scatcherd expected to escape commissions to Love by interlining.“net cash” in his option to the latter, he should have been explicit in so stating. If Scatcherd had been giving a minimum “net cash” price to Love to govern him as an agent in making any future sale, Love might well have understood that the price must net him the sum named free of commissions. Love might have then protected himself by loading his commissions upon the net cash price. But Scatcherd had by wire fixed $10 net cash per acre when communicating direct with Westbrook, and before he says he knew that Love had put Westbrook in communication. We think the court erred in instructing! a verdict for the defendant. Remand, and direct a new trial.