Rattray v. Wickersheim Implement Co.

CONREY, P. J.

At the trial of this action the court granted the defendant’s motion for a nonsuit. Plaintiff’s appeal is from the judgment.

By his action the plaintiff seeks to recover commissions in accordance with an alleged oral agreement. William J. Wickersheim was the president and general manager of defendant company. A condensed statement of the plaintiff’s testimony is as follows: “In August, 1914, Mr. Wickersheim came to my office and asked me if I could get him a man who would invest some money in his company. He said if I would put him in touch with a party who was able and willing to invest some money, he agreed he would give me five per cent. He preferred to get a man who would put in $10,000.” Thereafter Mr. Wickersheim sent to the plaintiff a letter, which the plaintiff received on March 26, 1915, as follows: ‘ ‘ This is to confirm our verbal agreement in which we agreed to pay you five per cent on $10,000 or more, if you are successful in securing an investment with this amount for our business.” This letter was signed “Wickersheim Implement Company, by Wm. J. Wickersheim.” The plaintiff introduced to Wickersheim one P. S. M'oore, who, on March 23, 1915, submitted to Wickersheim a written offer to purchase 150 shares of capital stock of defendant company for the consideration of ten thousand dollars. In response to that offer Wickersheim signed an acceptance in which it was stated that “in consideration of the agreement by P. S. Moore, made this 23rd day of March, I hereby agree to deliver him, upon fulfilment of the agreement, 150 shares of the capital stock of the Wickersheim Implement Company (and until such stock is issued and delivered I will deposit the same number of shares of my stock in the company in lieu of said stock).” This acceptance was signed “Wm. J. Wickersheim, Pres. Wickersheim Implement Company.” William J. Wickersheim, called as a witness for the plaintiff, testified that at the time above mentioned he owned 344 or 346 shares of the 440 shares of stock of the corporation at that time

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issued. On March 29, 19Í5, a letter was sent to the plaintiff, signed by the company by Wickersheim, as follows: “I herewith cancel our verbal agreement in which we agreed to pay you five per cent on the sale of $10,000 worth or more of our stock, with or without services, and which was confirmed in our letter of March 25, 1915.” S. J. Laporte was the secretary of defendant company. In connection with the testimony of Laporte, called as a witness for the plaintiff, the plaintiff introduced in evidence a record, which we will assume was part of the minutes of the board of directors, although that fact does not distinctly and positively appear. Those minutes show that on February 15, 1915, a motion, was adopted to the effect that the president, Wickersheim, was authorized to sell the treasury stock of the corporation at the par value of one hundred dollars per share. Laporte testified that none of the directors, except Wickersheim and himself, knew of the Moore transaction.