Hillman v. Joseph

Opinion by

W. W. Poster, J.,

The plaintiffs are brokers in rails and railroad supplies. In their amended statement of claim, their demand is “for services .rendered the said defendants as brokers under a certain contract made by and between the said plaintiffs and the said defendants for the sale by the said plaintiffs for the said defendants and at their instance and request $8,000 of relaying rails to Henry Menschke on or about September 14, 1895.”

The testimony taken in the court below indicates that there was communication between the plaintiffs and defendants by wire and by conversation respecting the contract and the commission to be paid to the plaintiffs. The former was concluded formally, the latter culminated in correspondence. A letter was sent by the plaintiffs to the defendants dated at Pitts-burg, September 18, 1895, in which they say, inter alia, “when Mr. Leonard Joseph was here he said, you would send us a note showing that we were entitled for our commissions and services the difference between $21.25, the price given us by you to sell the rails, and the price sold at $22.90 which is $1.65 per ton. Also that this would be paid to us on each shipment after you had received the money for same. Will you please do this as we would like to have a record on our books of this transaction.”

To this, the defendants on September 20, 1895, in a letter dated at Cincinnati, replied: “We are in receipt of yours of the 18th inst. and carefully note the contents. We know all about the contract which we have made with you, and we will live up to it in all respects. As soon as the rails are shipped, accepted, and paid for, you will get the difference between $21.25 a ton and $22.90. Understand, whenever we do business, it is strictly on business principles. As to the pass for Mr. Zinn, the B. & O. S. W. is out of them,” etc. To this the plaintiffs replied in writing, dated at Pittsburg, September 21, 1895: “ Your favor of the 20th to hand, which is all O. K. Mr. Zinn' was in this morning just before we received your letter,” etc.

It will thus be seen that the plaintiffs requested that the agreement between them and the defendants respecting the commission should be put in writing; that the defendants acquiesced by putting the terms in writing; that the plaintiffs replied in writing, acquiescing in the terms as stated. It is true that the plaintiff said, in one part of his testimony that his right to commission was fixed by telephone before the exchange of the above letters, but he is contradictory in his statements, and the testimony indicates that the purchaser and seller were not finally brought together until a written engagement was entered into between them some days subsequent to the alleged telephonic conversation. It was at the time of the execution of this document that the terms of the agreement for the payment of commissions were arrived at, as the letter of September 18,1895, indubitably proves. Furthermore, any negotiations or suggestions that may have preceded the correspondence above quoted must be held to be merged into the contract reduced to writing by the correspondence of the parties above set forth.

The contract being thus in writing, its interpretation was for the court and not for the jury. The proof was clear that the purchaser of the rails did not comply with his contract. No rails were “shipped, accepted, or paid for” by the purchaser. Such shipment, acceptance, and payment were by the agreements of the parties, made a condition precedent to the right of the plaintiffs to demand the commission or compensation for bringing about the sale.

The learned judge of the court below left it to the jury to determine whether the contract meant that the payment of the commission was simply to be deferred until shipment, acceptance, and payment, or that the shipment, acceptance, and payment were to constitute a condition precedent to a recovery. In this we think there was error. The interpretation of the writings was not for the jury. We are of opinion that the commission was payable only on the performance of his contract by the purchaser of the rails. The proofs show failure on the part of the purchaser to perform his contract. The plaintiffs had, therefore, no right to demand the payment of any commission. This being the true interpretation of the written contract, the court below should have directed a verdict for the defendants.

The judgment is therefore reversed at the cost of the appellees.