McGavock v. Woodlief
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.
The case is stated in the opinion of the court.
It was argued by Mr. Benjamin for the plaintiff in error. and Mr. Taylor for the defendant.
Mr. Benjamin for plaintiff in error:
It is difficult to institute an argument on a proposition which appears so plain as that the plaintiff's case was not made out on the facts stated to be proven; but as the judge below, even after argument for new trial, persisted in the opinion that plaintiff has proven his case, we will analyze the allegata and probata.
The plaintiff's petition was clearly demurrable; but as he was allowed to make all the proof he could, the case will be argued on the merits alone. It was necessary for plaintiff to prove—
1st. That he was employed as a broker by McGavock, to effect a sale of his plantation.
2d. That he did find a purchaser willing and able to buy the plantation at the price and terms fixed by McGavock, to wit, for $130,000, payable $20,000 in cash, and the remainder in five equal annual instalments, without interest.
3d. That the sale was actually made and the price received; or, at all events,
4th. That it was his employer's own fault that the sale was not effected; and that the employer's refusal to carry out the sale agreed on resulted from (to use the language of the judge) whim, or caprice, or insufficient reasons.
1st. The statement of facts finds the first fact essential to plaintiff's recovery.
2d. On the second point, the evidence directly contradicts the plaintiff's case.
According to the statement of facts, the purchaser to whom McGavock agreed to sell was one George M. Long; the price was to be $120,000 for the plantation, and $13,500 for the growing crop, to be paid as the crop was sold. This price was to be paid, says the statement, mainly in the notes of a Dr. Bard, which notes belonged to Mrs. Long.
Was Long a purchaser able and willing to make the purchase?
The statement says 'that he owned no property; or, if he did, that it stood in the name of his wife, and that he had little credit. His credit was not good.'
The statement also says of the notes, which were the main portion of the price, 'that they were the property of Mrs. Long, the wife of George M. Long; that although she at first refused to permit the notes to be used in the purchase of the plantation and slaves from McGavock, she afterwards consented that they should be so used, on condition that the sale of the plantation and slaves should be made to her.'
Can anything be clearer, then, than the fact that the purchaser procured by the broker was unable to buy, because he could not pay the price agreed on?
The petition contains no allegation of a sale to Mrs. Long. The statement of facts shows no consent of McGavock to sell to her. It shows not even a proposition to McGavock to sell to Mrs. Long; nothing but a power of attorney from her to the broker, to buy the property for her, with her husband's consent. It does not appear that her husband ever agreed to this, nor that her offer was ever communicated to McGavock.
The only purchaser procured by the broker being shown to be unable to comply with his bargain, on what conceivable ground could McGavock be compelled to pay a brokerage commission?
But the statement shows that Mrs. Long herself was unable to comply with the terms agreed on. It says, 'that it was in the contemplation of purchaser and seller that the notes of Dr. Bard should be substituted in the place of those which had been given by McGavock to Thibodaux, when McGavock purchased it from Thibodaux.'
Here, then, McGavock stipulated that his own notes should be taken up and returned to him, by substituting Bard's notes. But some of McGavock's notes, amounting to at least $20,000, were in the hands of Cammack, Squires, & West, and the statement says 'that application was made by the plaintiff, and by Long, to the said firm, to substitute the notes, &c., but that no satisfactory answer was received.'
How is this difficulty to be obviated? Here is a positive condition of the sale, an important condition, which the purchaser finds it impossible to comply with. Was McGavock bound to sell, and leave his own notes for $20,000 outstanding? It is true, that in the statement of facts the judge says that he 'sees no reason to doubt that Long and wife would have been prepared to comply with the terms of the contract, * * * even if they were required to pay cash the amount for which Cammack, Squires, & West, were endorsers, by having discounted a portion of Dr. Bard's obligations.'
It is obvious that this last quotation contains no statement of any fact, but a mere inference of the judge from the other facts proven; in other words, it is a reason given for his judgment.
But this passage is curious, as exhibiting how far the court had travelled away from the true issue, which was simply this: 'Was George M. Long, who made the purchase, able to comply with the condition of substituting Bard's notes for McGavock's?' The statement admits that he did not own Bard's notes, and could not get them for his own purchase; and that if he did, the holder of McGavock's notes would not make the exchange.
Thereupon the court decides that McGavock was bound to sell to Mrs. Long, or to Long and wife, and infers, in opposition to the direct fact that the substitution of notes was impracticable, that 'Long and wife would have been prepared to pay cash by discounting Bard's notes.'
Surely this is making a bargain for McGavock, not executing one made by him.
3d. It is admitted that no sale was actually made, and no brokerage due therefor for actually effecting a sale.
4th. If it were admitted that brokerage could ever be recovered without an actual sale effected, (a point which it is unnecessary to discuss under a state of facts like that above disclosed,) it is perfectly clear that the recovery could only be had in a case where the party employing the broker had, through his own fault and caprice, prevented the accomplishment of the condition on which the broker's right to commission depends, to wit, the effecting of a sale. As nothing of this kind appears in this case, it is our confident conclusion that the plaintiff in error has been erroneously condemned in the lower court. (Broad v. Thomas, 7 Bingh., 99; Read v. Rann, 10 Barn. and Cress.)
Mr. Taylor's points were the following:
1st. There is nothing in the record which can enable the court to revise the judgment of the court below. (Lathrop v. Judson, 19 How., 69.)
2d. The plaintiff in error employed the defendant in error, in his capacity of broker, to find a purchaser and to negotiate a sale of his (the plaintiff in error's) plantation, &c., for him. The defendant in error found a purchaser, brought the parties together, and they came to a distinct understanding and agreement to make and complete a sale of the property, and the sale was not completed only through the fault of the plaintiff in error.
3d. The right of the defendant in error to the usual commission of brokers in such cases became perfect when the minds of the parties to the negotiation were brought to a concurrence, and thus the consideration and terms of the contract of sale with respect to the property to be sold were agreed upon. (C. C. of La., Art. 1797, 1765; Story on Agency, sec. 329; Hammond v. Holliday, 1 Cur. and Payne, 387.)
Mr. Justice NELSON delivered the opinion of the court.