Dinning v. Zellerbach Paper Co.

THE COURT. The plaintiff brought an action to recover from the defendants damages in the amount of $4,500 for the breach of an alleged oral contract to employ him as broker in effecting insurance on a number of automobiles and auto-trucks owned by one or other of the defendants or by their employees.

The contract alleged was that on or about March 23, 1928, plaintiff promised and agreed with defendants to secure for them “prior consideration or preference” in the purchase of paper by a group of corporations including, among others, the Pacific Mutual Life Insurance Company, in consideration of a promise on the part of the defendants that, as long as such prior consideration and preference was accorded them, they would place with the Pacific Indemnity Company, through plaintiff as broker, all insurance which they might carry, on said automobiles and auto-trucks. The plaintiff alleged performance of the agreement on his part, and that up to the time of bringing suit the plaintiff had secured for the defendants said preference in the purchase of paper, but that since May 1, 1931, the defendants have placed said insurance through another broker, resulting in the loss to plaintiff of commissions.

The cause was tried by the court, which made findings to the effect that the defendants had not made the promise alleged, and also that the plaintiff had not performed the promise upon which he bases his right of recovery.

The plaintiff moved for a new trial upon the ground, among others, of newly discovered evidence which he could not with reasonable diligence have discovered and produced at the trial. The motion was denied, and the plaintiff has appealed from the judgment entered against him upon the findings. As grounds for the appeal he contends that the evidence sustains neither the finding that there was no contract between the parties nor that the plaintiff failed of performance, [625]and also assigns as error the refusal of the trial court to grant a new trial.

1. The record discloses that in and prior to the year 1928 defendant Zellerbach Paper Company and Zellerbach Corporation (predecessor of defendant Crown Zellerbach Corporation) were the owners of a number of automobiles and auto-trucks upon which they were carrying insurance in the Zurich Insurance Company, which had been effected through Marsh and McLennan (a corporation) as broker. The policies of insurance were to expire on May 1st of that year; and the plaintiff, who was in business relations with Swett and Crawford, the Pacific Coast agent of the Pacific Indemnity Company, conceived the idea that he would endeavor to have said insurance transferred to that company upon the expiration of the existing policies, with himself as broker in the transaction. He accordingly some time during the month of February visited the offices of defendants. At the trial the plaintiff as a witness in his own behalf testified concerning this visit. He stated that at that time he saw Mr. E. M. Mills, Mr. M. R. Higgins and Mr. I. Zellerbach, all officers of one or other or of both the defendant corporations; that “I asked them if they were prepared to turn over the automobile insurance to me as broker for placing it in the Pacific Indemnity Company in return for my securing for them, for the Zellerbach interests, a preference in the purchase of paper by a group of companies known as the Lee Phillips group . . . , and I asked that the placement of the insurance be given to the Pacific Indemnity Com - pany, and it would justify them in taking the business away from the then insurance carrier. I said that I would like to have them turn that business over to me as broker as of May 1, 1928. They discussed the proposition among them ■ selves. I believe Mr. Higgins asked Mr. Mills if he thought well of the idea, and Mr. Mills said he did; and he then asked Mr. Zellerbach what he thought of it, and Mr. Zellerbach thought it was a chance to sell more paper, and he said he was agreeable to it. I then said ‘I need no further information other than the assurance that the thing will be carried out’ ... I advised them I would get in touch with Mr. Swett, who was a director of the Pacific Indemnity Company and who assured me he could get this preference paper busi