Pape v. Romy , 16 Ind. App. 470 ( 1896 )

Davis, C. J.

This was an action instituted by Wright against Pape to recover for services in negotiating purchase of patent right in 1881; in procuring purchasers for patent rights, and for commissions on sales of machines and expenses in 1882. Pape v. Wright, 116 Ind. 502.

After the reversal of the former judgment by the Supreme Court, appellant filed a fourth paragraph of answer averring that the matter sued for had been litigated and settled in a suit between the appellee and appellant and Fleming and Pfeiffer.

A general verdict was returned in favor of appellee for $1,250.00.

In answer to interrogatories, the jury find that the Fleming Manufacturing Company, composed of Charles Pape, William Fleming and Charles Pfeiffer, was formed January 1, 1883, and that they allow appellee in their general verdict $1,250.00 for services of said Wright as the employe and agent of the Fleming Manufacturing Company, and that suit was brought by Wright against Pape, Fleming and Pfeiffer for the value of his services in making sales of machines mentioned in the complaint in this action, in which he recovered judgment for $500.00, and that the judgment has been paid.

We have carefully read the entire record. The evidence is conflicting and unsatisfactory.

It is not clear that the jury allowed appellee anything for the alleged services rendered appellant by Wright in 1881 and 1882. The inference from the answer to the interrogatories is that the general verdict was based on the services rendered Fleming Manufacturing Company by Wright in 1883. Another inference is that he has recovered judgment for such services in another action. Whether these are the only inferences that might be drawn we will not determine. The theory of the first paragraph of the complaint is that the appellant agreed to pay said Wright a sum equal to all that he might sell the rights of appellant in and under certain letters patent, over and above $5,000.00. One item in this paragraph is that Wright in pursuance of said agreement procured one Charles Pfeiffer to purchase of the defendant for $7,000.00 a one-third interest in the right to manufacture and sell a leveler and grader under one of the letters.

In this connection Wright testified that in making-the sale to Pfeiffer for appellant he said to him, “I will guarantee to you, you will make 50 per cent, of the money within one year,” etc. * * * “I says to Pfeiffer he could have the privilege of withdraw* ing his money at 8 per cent, interest.”

In pursuance of this conversation it was provided in the contract between Pfeiffer and appellant that appellant should, at the election of said Pfeiffer within one year, repurchase the interest sold to Pfeiffer at $7,000.00 with 8 per cent, interest.

It clearly appears, without controversy, that Pfeiffer, within one year, exercised the privilege of withdrawing his money, with interest, and that appellant repaid the money, with interest, to him.

The court instructed the jury that under such circumstances, Wright was entitled to recover for the services in making the sale to Pfeiffer.

The exercise of Pfeiffer’s privilege was not caused by any act or connivance of appellant. At least, the instruction proceeds on no such theory. As to the item growing out of the sale to Pfeiffer, the theory of the appellee in the trial court was, as we understand it, that appellant became liable to Wright on the special contract that he should have a sum equal to all he could realize for the rights in and under the patents in excess of $5,000.00 without regard to the terms or conditions of such sale.

It was incumbent on said Wright, in our opinion, before he became entitled to recover for such services, to furnish a purchaser who was willing to pay appellant something in excess of $5,000.00 for his rights in and under such letters patent. Pfeiffer was not willing to purchase, except on condition, that at his option, his money and interest should be returned to him within one year. He was not willing to pay appellant $7,000.00, absolutely, for an interest in the, patent without reservation. Appellee’s theory was that Wright sold for appellant a one-third interest in one of the patents for $3,000.00, and a one-half interest therein to Pfeiffer for $7,000.00. If Wright’s version of the transaction is true his own testimony shows that the sale to Pfeiffer was conditional. No theory has been suggested, on which the instruction relative to his rights to recover, on account of the sale to Pfeiffer, can be sustained. In our opinion, the testimony of Wright shows that the sale made to Pfeiffer was conditional in this, that it was upon the condition that if said Pfeiffer was not satisfied therewith at any time within one year, he was entitled to have the consideration of the sale, with interest thereon, paid back to him. This in effect gave him the right to rescind the sale. When he exercised his privilege, and received from appellant the purchase money, with interest, the sale was rescinded and appellant had nothing by reason of the service of Wright. As to this transaction, Wright failed to produce a purchaser who was. willing to buy. There was a string to the sale which in the end entirely defeated it. The conditions which defeated the sale were made by Wright. There was nothing about the transaction of which he could rightfully complain. If he had found one or more purchasers who were ready and willing to buy appellant’s rights in and under the letters patent for a sum in the aggregate in excess of $5,000.00, Wright would have been entitled to recover such excess.

Judgment reversed, with instructions to sustain appellant’s motion for a new trial.