Gibbons v. Monongahela River Consolidated Coal & Coke Co. , 1917 Pa. Super. LEXIS 102 ( 1917 )

Opinion by

Kephakt, J.,

This is an action by a broker to recover commission for the sale of a steamboat. A broker becomes entitled to his commissions in a contract for the sale of property when he procures a party with whom the owner is satisfied: S. Y. Thompson Co. v. Goldman, 41 Pa. Superior Ct. 209; Keys v. Johnson, 68 Pa. 42; Holmes v., Neafie & Levy, 151 Pa. 392; Irons v. Snyder, 49 Pa. Superior Ot. 522; Kifer v. Yoder, 198 Pa. 308. But a mere volunteer is not entitled to commission if lie bring the parties together: Samuels v. Luckenbach, 205 Pa. 428; Henderson v. Sonneborn, 30 Pa. Superior Ct. 182. And where the contract is specific, that is, limited to a certain property at a specified price, a sale by the owner of a different property or chattel will not entitle the broker to a commission even though it was through him the parties were brought together and it may be said that such introduction was “the efficient means of producing the sale.” He is merely a volunteer without precedent authority or subsequent acceptance: Samuels v. Luckenbach, 205 Pa. 428-432; Yerkes v. Osborne, 42 Pa. Superior Ct. 253. Of course, where the broker assists in selling the different property, and his work is accepted, the rule is different. The theory upon which the case was tried was that the contract was specific in that Captain Barbour Avas named as the person who woiild buy the boat, and not having done this, there can be no recovery.

The contract was made from letters and telegrams and the trial court correctly held that there was “sufficient to raise an implied obligation on the part of the coal company to pay the five per cent.” commission. The telegram from the defendant was an acceptance of the plaintiff’s offer to open negotiations for the sale of one of defendant’s boats on the terms named in the letter. The letter of December 24th notified the defendant that “Captain J. B. Barbour left yesterday for upper Ohio river points and will no doubt call on you, and if you have anything to offer and sale should go through, we would like of course, to be protected on 5 per cent, commission.” When negotiations were opened by Captain Barbour with the defendant’s manager Bunton, who sent the telegram, Captain Barbour was accompanied by one Davis, and it is the defendant’s contention that Davis was the purchaser of the boat, acting independently without any connection with the plaintiff or Captain Barbour. To entitle the plaintiff to recover a commission for the sale of property he must establish that he was the procuring cause of the sale, according to his contract. This is usually a question of fact for the jury. Both Barbour and Davis came from New Orleans, undoubtedly at the suggestion of the plaintiff. It is not material who formally introduced them to the defendant’s manager. A part of the plaintiff’s statement of claim admitted by the affidavit of defense, reads: “That said J. R. Barbour, accompanied by one George E. Davis, agent for the said Transcontinental Petroleum Company, under directions of plaintiff came to the City of Pittsburgh and called upon the said defendant company, and purchased from it the steamboat ‘Volunteer,’ for the price or sum of twenty-two thousand dollars ($22,000).” This would show Davis’s connection with the transaction. If Barbour was acting for- others this would not affect plaintiff’s right to commissions. Captain Barbour testifies that he went to the company’s office, and met Mr. Bunton and spoke to him about the sale of the “Volunteer” and three other boats. At that conversation he told Bunton that they were a couple of days late — meaning Davis and himself — that Mr. Gibbons, the plaintiff, had recommended the buying of the “Volunteer.” Bunton stated that he had a wire from the plaintiff. Barbour further stated that Mr. Davis was the agent of the Transcontinental Petroleum Company and conducted all the negotiations as a representative of the petroleum company; that he was present the day the sale was made by Mr. Davis, and took the steamboat to Tampico, Mexico; that Mr. Davis was working under his direction, and that he had knowledge of the deal finally closed. If this testimony was to be believed by the jury, it, with the portion of plaintiff’s claim admitted of record, would show that the defendant knew that both Davis and Barbour came from the plaintiff, and it was through the plaintiff that the sale was made. The mere fact that the bill of sale was made to Davis would not change the character of the transaction nor would the fact that Davis violated instructions and purchased for a larger price be material if he notified Barbour of the sale, as he afterwards did, and Barbour was present when the deal was consummated and took possession of the boat. Captain Barbour’s testimony was denied and considerable evidence was submitted to show it to be untrue. This was for the jury. The court erred in charging the jury, there was not sufficient evidence to justify them in finding that the company knew that it was selling that boat to any other person than Davis. At the close of the charge, when the court’s attention was called to this error, he emphasized it by saying: “The instruction I gave you as to the knowledge of the company, I will allow to stand.” Bunton, the manager, the man who sent the telegram, met the parties when they reached Pittsburgh. Notice to him under the circumstances was notice to the company. McCue’s lack of knowledge was not material. The court did not give full effect to the testimony of Barbour and to the defendant’s admission. In fact, the effect of this admission was brushed aside. If these facts were believed by the jury, it could properly find for the plaintiff. The second assignment of error is sustained. •

We do not think there was any substantial harm done the plaintiff as complained of in the other assignments of error. The court overlooked Mr. Barbour’s testimony in commenting on the sixth point presented by the appellant. It is only necessary to sustain the second assignment of error which is here done.

The judgment is reversed and a venire facias de novo is awarded.