Gillons v. Turner Oil Co.

[650]

SHAW, J.

Action to recover a commission as broker for services rendered to defendant in procuring an oil contract.

Judgment went for plaintiff, from which defendant appeals.

The material facts, as they appear from the verified complaint, are: That defendant, on January 31, 1917, made a written contract with the Graham-Loftus Oil Company for the purchase of certain crude oil to be delivered in monthly quantities during the year ending January 31, 1918, as therein specified. On the same date with this contract defendant made and delivered to plaintiff the contract therein sued upon, wherein, after reciting the making of the contract with the Graham-Loftus Oil Company and that plaintiff had rendered certain services to defendant in obtaining the same, it promised and agreed in express terms to pay him six cents per barrel for all the crude oil delivered to defendant by the Graham-Loftus Oil Company under and pursuant to the contract therefor, which payments were to be based upon and determined by monthly settlements had between defendant and the Graham-Loftus Oil Company for oil so delivered; that between the first day of August and the twenty-eighth day of September, 1917, the defendant, as shown by statements rendered, received from said Graham-Loftus Oil Company 19,808.45 barrels of crude oil, delivered to it by the Graham-Loftus Oil Company pursuant to the terms of said oil contract, for which it made payment; that by reason whereof defendant became obligated under its agreement with plaintiff to pay him $1,-188.50, all of which sums remain due and unpaid; none of which material facts is denied by the answer.

As a defense, the answer affirmatively alleged that plaintiff and his partner, one Treat, represented to defendant that the oil to be delivered by the Graham-Loftus Oil Company pursuant to the contract therefor did not and would not when delivered contain more than two per cent of non-petroleum substance, whereas all the oil so contracted to be delivered by the vendor contained more than five per cent of such substance, which, and the fact that said oil would contain such substance in excess of two per cent, was well known by plaintiff at the time of the execution of the contract made by defendant to pay him the commission, but