Contract, Construction. Agency, Commission. Equity Jurisdiction, To reach and apply equitable assets.
In a suit in equity in which the plaintiff sought to recover from a construction company a commission upon the sale of certain railroad bonds by the defendant, it appeared that the plaintiff made the following offer in writing which was accepted in writing by the defendant: "On your request I will go East and work in connection with E. in placing $1,200,000 bonds of the D. R'y Co. you to pay the expenses of my trip and of my necessary stay in the East, and to allow me a net commission of one per cent on the face value of the bonds placed." The plaintiff went to work with E., who was the president of the railroad company, and the two continued their efforts for a considerable time with a fair prospect of success, when E. completed a contract for a sale of the bonds to the amount of $866,000. The plaintiff personally had no negotiations with the purchaser, and the sale was completed by E. alone. Held, that the contract contemplated joint efforts in a common cause, with a commission to the plaintiff upon all the bonds that were sold as a result of these efforts, whether the negotiations for a particular sale were conducted by the plaintiff or by E., and that by the terms of the contract the plaintiff was entitled to a commission of one per cent on the face value of the bonds sold as above.
In a suit in equity under R.L.c. 159, § 3, cl. 7, to reach and apply in payment of an alleged debt to the plaintiff the purchase price of certain railroad bonds which was alleged to be due to the principal defendant from the other defendant, it appeared that at the time of the filing of the bill there was merely an executory contract between the two defendants for the sale and purchase of the bonds whereby the defendant purchaser was bound to take and pay for the bonds as they were delivered from time to time upon the completion of each five miles of the railroad, but that after the filing of the bill and before the hearing of the case the defendant purchaser had received all of the bonds called for by the contract of purchase and was indebted to the principal defendant in a sum more than sufficient to satisfy the plaintiff's claim. Held, that at the time of the commencement of the suit "there was no property, right, title or interest, legal or equitable" of the principal defendant in the hands of the defendant purchaser, and that the fact that at the time of the hearing there was money in the hands of the defendant purchaser due to the principal defendant as the price of the bonds was immaterial.
KNOWLTON, C.J.
The contract on which this bill was brought is as follows:
"Chicago, Ill, Oct. 14th, 1901.
"Jacob A. Henry, Esq., "Financial Agent Globe Construction Co.
"Dear Sir:
"On your request I will go East and work in connection with Mr. E.S. Ellsworth in placing $1,200,000 bonds of the Des Moines, Iowa Falls Northern R'y Co. you to pay the expenses of my trip and of my necessary stay in the East, and to allow me a net commission of one per cent on the face value of the bonds placed.
"Yours truly,
"Edwin D. Wheelock.
"The above proposition accepted.
Globe Construction Co.
by J.A. Henry, Treasurer Financial Agent."
The plaintiff went to work with Ellsworth, who was the president of the railroad company, and the two continued their efforts for a considerable time with a fair prospect of success, when Ellsworth completed a contract for a sale of the bonds to the amount of $866,000 to the defendants George A. Fernald and Company. The plaintiff personally had no negotiations with Fernald and Company, and the sale was completed by Ellsworth alone. The principal question is whether the plaintiff is entitled to compensation, according to the terms of the contract, for bonds sold by either or both of them while they were working together, or only for those which he sold personally, or in the sale of which he personally participated.
We are of opinion that the contract contemplated joint efforts in a common cause, with a commission to the plaintiff upon all the bonds that were sold as a result of these efforts, without reference to which of them conducted the negotiations for a particular sale. This seems to result from the use of the words, "work in connection with Mr. E.S. Ellsworth in placing," with a stipulation for the payment of a commission "on the face value of the bonds placed." The defendants' appeal is not well founded.
At the time of the commencement of this suit there was no "property, right, title or interest" of the Globe Construction Company in the hands of George A. Fernald and Company that could be affected by such a suit. There was merely an executory contract between them, whereby Fernald and Company were bound to take bonds and pay for them by a sight draft on delivery. There was no evidence to show the value of the rights of the respective parties under this agreement. The Globe Construction Company would not be entitled to anything from Fernald and Company without giving them bonds which, so far as appears, were worth the price to be paid for them. Fernald and Company were not entitled to any bonds without paying for them their full value on delivery. The case is similar to Pettibone v. Toledo, Cincinnati St. Louis Railroad, 148 Mass. 411, 419.
The fact that money belonging to the other defendant is now in the hands of Fernald and Company, and is due as the price of the bonds, is immaterial. It is a condition that has arisen independently of any rights secured by the service of process in this suit.
Decree affirmed.