Opinion
December, 1905.
Everett Masten, for the appellant.
Harcourt Bull, for the respondent.
The plaintiff is a shipbroker and brings this action to recover commissions upon a sale by the defendant of the steam tug Atlas to the United States government during the Spanish war.
The judgment must be reversed, not only because the plaintiff failed to establish that he was employed by the defendant to make the sale, but also upon the ground that he was not the procuring cause of the sale.
The evidence discloses that plaintiff learned that a representative of the government was looking for vessels of a certain class, and he thereupon went to the agent of defendant and suggested a sale of the tug Atlas, and the agent informed him that he did not know whether the company wanted to sell any of its vessels or not, but directed one of his clerks to give the plaintiff the particulars of the boat and of her movements. This was not an employment of the plaintiff to sell the boat. Besides, subsequently, the representative of the government notified the defendant that for some time prior to the interview of plaintiff with the defendant's agent, the government had had the tug Atlas on its list of boats to be taken, in case of necessity, for use in the war. The defendant protested that it could not spare its boat, but it being insisted that it should, finally fixed the price and sold it. Even if the plaintiff had been employed to make the sale, it was not in fact made through or by him.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
O'BRIEN, P.J., PATTERSON, McLAUGHLIN and CLARKE, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.