Clark v. Morris ( 1908 )

Mr. Justice Van Obsdel

delivered the opinion of the Court:

Appellee was dealing with appellants in the capacity of an agent or broker. The law is well settled that where a broker is employed to sell property upon a commission, and by his ■efforts brings the owner, or agency through which he is employed, and the prospective purchaser together, and a sale results, though it be accomplished by the owner or such agency without any further assistance by the broker, the broker is entitled to his full commission, the same as if he had conducted .all the details of the sale. The contract in this case provided that appellee should be paid not only for the sales he made, but for the sales that the company, or Clark & Company, its fiscal agents, should make through his influence. The agreement was broad enough to comprehend any prospective purchaser whom appellee, through his efforts, should discover and bring to appellants, and who, as a result of his influence, should after-wards purchase stock and pay for it. We think the efforts of .appellee as to both Cowen and Garrett bring him within the rule. The evidence discloses that when Cowen made his first purchase of stock through the efforts of appellee, he not only led appellee to believe that he would increase his holdings, but assured him that he would assist him in getting Garrett to buy some of the stock. When appellee reported this information to Davis, he was instructed to go with Cowen to Baltimore, and not only sell more stock to Cowen, but to see Garrett. Before appellee could see Garrett, Davis instructed him not to see him until he could notify him. Appellee was putting forth his best -efforts to dispose of the stock, both to Cowen and Garrett, when he was deterred by Davis from further negotiating with Garrett. The principal cannot interfere with the operations of his broker in that way, and thereby escape the payment of commissions that otherwise would have been earned by such broker.

The only question left for determination is, was the stock for which the receipts of Cowen and Garrett were given paid for ? The court instructed the jury as follows: “The plaintiff, if he is entitled to recover at all, is entitled to recover only to the extent that he proves, by a preponderance of the evidence, that the subscription to the stock described in the declaration was procured by him or through his influence, and that the subscription was actually paid for by the subscriber. It is not, however, necessary that the proof should be direct. If there is testimony on those points in the case, — if such facts develop which will justify the inference, — you may find the necessary element present. But it is for you to say whether or not that inference should attach. For example, if it is proven that the first Cowen subscription was procured through the influence of the plaintiff, and that there was a second subscription, then you are justified in inferring that the influence which procured the first was the same that procured the second, in the absence of anything to the contrary. And so, in Tespect to the question of payment for stock, if you find that stock certificates were actually delivered to subscribers, you may infer that they were paid for by the subscribers, in the absence of anything to the contrary. It is not a necessary inference, but one the drawing of which is in your discretion and judgment according to the case.” The instructions are assailed by counsel for appellants on two points: First, that the fact that the first Cowen subscription was procured through the influence of the appellee will not justify an inference that the same influence procured the second; and, second, that the delivery of certificates of stock io subscribers is not a presumption that such stock was paid for. The instructions of the court to the jury should apply the law to the facts as disclosed in the case in which they are given.An instruction correctly stating the law in one case, if given in another case, though similar, might be erroneous. We think that the court committed no error in the instructions here given, when applied to the facts of this case. The evidence of appellee’s dealings with Cowen, and the circumstances under which appellants prevented him from negotiating with Garrett, together with the receipts from Cowen and Garrett, showing the delivery of stock for which appellee testified he was informed Garrett paid $12,500 and Cowen $6,500 raises sufficient presumption of purchase and payment to cast the burden upon the appellants of removing that presumption. This the appellants have failed to do, and the court committed no error in instructing the jury that these facts could be presumed from the evidence adduced in the case. It must be remembered that no evidence was offered on the part of appellants to contradict any of the facts here stated. Appellee was not required, as insisted by counsel for appellants, to bring in the books of the company, or to produce further evidence of payment. The evidence produced by appellee was sufficient, in the absence of any contradiction, to shift the burden to the appellants of establishing the fact that payment had not been made, if such was the case. This was a fact peculiarly within their possession, and which they readily could have established.

The price for which this stock was actually sold to Cowen and Garrett is immaterial. The price for which appellee was directed to negotiate for the sale of the stock was $2.50 per share. It -was upon that basis that he brought the parties together. If the stock in question was sold for a less price than appellee was authorized to take, and the sale was consummated without notice of the reduction in price to appellee, he is entitled to recover his commission on the basis of a sale at $2.50 per share. If they sold the stock at a greater price than that given appellee upon which to base his negotiations, they have not been damaged and cannot be heard to complain.

The judgment is therefore affirmed, with costs, and it is so ordered.

Affirmed.