Fawkner, Currie & Co. v. Rio Negro Shipping Co.

Mount, J.

This action was brought to recover a commission of $650 for the sale of a ship. The complaint alleges in substance that, on or about January, 1917, the defendant company entered into a contract with the plaintiff as selling broker, by which defendant agreed to pay five per cent commission on the sale price of the ship “Fortuna,” owned by the defendant. That plaintiff performed its part of the contract, sold the ship, which was at the time in Pimentel, Peru, for the agreed price of $13,000, and thereby earned its commission. The defendant denied generally the allegations of the complaint. On these issues, the case was tried to the court without a jury. At the conclusion of the evidence, the court found, in substance, that the plaintiff did not sell the ship; that it was sold by the captain for the sum of $15,000; that a broker employed by the captain to make the sale was paid a commission of $2,000; and that the sale by the captain was an independent sale, after negotiations which had been entered into between the plaintiff and Comyn, Mackall & Company, of Peru, had been broken off. Upon these findings, the court entered a judgment in favor of the defendants. The plaintiff has appealed.

The correctness of this judgment depends entirely upon a question of fact. It is argued by counsel for appellant that the evidence shows appellant was the moving cause of the sale and is therefore entitled to a commission. The trial court found that the appellant was not the moving cause of the sale; that the sale was not made by or through appellant, but was finally made after the purchaser which appellant had procured had refused to purchase the ship upon the terms offered, and that the captain of the vessel thereafter, upon instructions from the owners, made an independent sale of the vessel.

There are some circumstances in the case favorable to the appellant, but the weight of the evidence is to the effect that the appellant was authorized to sell the vessel for $13,000, upon a contract contained in a letter from tlie owners to the appellant as follows:

“We will sell the American Schooner Fortuna . . . to Comyn, Mackall & Co., or any person designated by them, for $13,000 cash. Delivery to be made at Pimentel, Peru, after the discharge of the present cargo . . . Out of the price we will pay a selling commission of five per cent.”

It appears that, at the time this letter was written by the respondents to appellant, the vessel was on her voyage from Seattle, in this state, to Pimentel, Peru. When the vessel arrived at Pimentel, Comyn, Mackall & Company, to whom the vessel was to be sold, sent a message to the owners in Seattle to the effect that they would not accept the vessel without a new mainmast and without some dories and the chronometer on the vessel. The owners refused to'furnish these items. Thereafter Comyn, Mackall & Company notified the owners that they would not take the vessel. Thereafter the owners of the vessel sent a message to the captain asking him to sell the vessel or return her to her home port. The captain thereupon employed a broker to make the sale. This broker sold the vessel to the same person to whom Comyn, Mackall & Company were endeavoring to sell. The captain obtained a price of $15,000, and paid the broker who made the sale $2,000 commission. This is the substance of the evidence offered in behalf of respondents on the trial." The trial court apparently believed this evidence and concluded that the sale made by the captain through the broker whom he had secured was entirely independent of the sale which the owners had authorized the appellant to make, and, for that reason, found in favor of the respondents and entered judgment accordingly. We think there can be no doubt that the weight of the evidence was as found by the trial court. There was clearly sufficient evidence to support the findings made.

The judgment must therefore be affirmed.

Main, C. J., Parker, and Fullerton, JJ., concur.