Haun v. Rosenmayer

LANGDON, P. J.

This is an appeal by the defendant J. J. Rosenmayer from a judgment against him alone in the sum of $3,534.96 for commissions upon the sale of goods. The plaintiff is the assignee of Sutphen & Company, a co-partnership engaged in business as brokers and manufacturers’ agents in the city of Chicago. The defendant was engaged in Los Angeles in the business of buying cauliflower from the farmers and packing the same in barrels and then selling in the eastern markets in carload lots. The defendant paid commission to the plaintiff’s assignor upon a sale of five carloads to Libby, McNeill & Libby, a Chicago buyer, and the dispute is over the commission upon an additional eighty cars sold to the same purchaser a day or so later. The appellant attacks the finding of the trial court to the effect that the plaintiff’s assignor rendered services to the defendant as a broker in securing the purchaser for these additional eighty cars of cauliflower. This finding is based upon the correspondence between the parties, which is set out in the record. It can serve no useful purpose to quote that correspondence in full here, and in the interest of clarity we shall merely call attention to those portions, which justify the conclusion of the trial court. On November 18, 1916, following up other correspondence, the brokers telegraphed the defendant as follows: “Have buyer several cars cauliflower seven dollars shipping point. Will inspect, accept and pay for flower Los Angeles. Wire number of cars and where inspector now at San Francisco can meet you. If only one car let Budlong have it', terms sight draft. If more wire us.’’ To this defendant replied on November 19th: “Am able to load two cars a week at eight dollars per

[355]

barrel subject to changes. Will ship Budlong one car also at eight dollars. Demand big, market higher. If inspector comes to Los Angeles will make arrangements.” On November 19, 1916, the brokers telegraphed to the defendant that they had “sold Libby McNeill five cars or more if available same price and terms. Their Mr. Eustace now California will see you early part week.” To this telegram defendant replied: “Will ship Budlong car next week. Will be able to ship later all you can sell. Too early yet, don’t guarantee future prices.” On November 21, 1916, Sutphen

&

Co. wrote the defendant: “Referring to the Libby McNeill and Libby cauliflower deal, they will buy five cars at $8 Los Angeles, if you can supply them or they will take one car this week at $8.00, then wire us price on balance. Their man will be with you today or tomorrow. In your telegram you say that you can give us all the cauliflower we can sell and that it is too early yet to quote price ...” Libby, McNeill & Libby wired their agent at Los Angeles on November 21st: “Rosenmayer quotes thro Sutphen forty-five gallons cauliflower in brine eight dollars Los Angeles, need badly, see Rosenmayer today, inspect cauliflower, buy all possible if good color. ...” On November 22, 1916, Mr. Beilfus, the Los Angeles agent of Libby, McNeill & Libby, in accordance with these instructions, called on the defendant and bought five cars at eight dollars; on November 23d, he bought thirty cars at eight dollars and twenty-five cents and on November 24th, he bought fifty cars at eight dollars and fifty cents. On November 23d, Sutphen & Company wrote to the defendant: “Libby, McNeill & Libby have sent a man to see you. They will buy five cars, more if you have them at the same price. Both Budlong and Libby have agreed to have the cauliflower shipped at once.” On November 27, 1916, Sutphen & Co. wrote defendant again: “We are pleased to learn that you are able to supply Libby, McNeill & Libby with 70 or 80 cars cauliflower. They have informed us over the ’phone of the terms and conditions as set forth in the attached sales ticket. Presume they have cleaned up everything you have outside of the order for Budlong ...”