Bethlehem Steel Co. v. Dornberg

Stockbride, J., delivered the opinion of the Court. This suit was instituted to recover commissions alleged to be due the plaintiff for service rendered by him as a real estate broker, in connection with the acquisition by the Bethlehem Steel Company of a tract of land on Patapsco Meek from William L. Gray, and which resulted in a verdict in favor of the plaintiff for the sum of $4,500, or 5% on $90,000, the amount paid hv the Steel C'ompany for the property of Mr. Gray. The record contains but a single bill of exception, and has reference only to the action of the Court in its ruling’; upon the prayers of the defendant. The questions presented are still further narrowed to the first three prayers of the defendant, all of which were rejected.

These involve but two questions of law: First, whether there was evidence in the case legally sufficient to require the submission of the matter in controversy to a jury under the proof offered and the averments of the declaration; and, second, whether there was such a variance between the declaration and the proof offered by the plaintiff as to require the withdrawal of the case from the consideration of the -jury. The first three counts of the declaration were common ■counts in assumpsit; the fourth count reads as follows: “4. And for that the defendant, The Bethlehem Steel Company, is a body corporate, and the defendant, The Penn-Mary Steel Company, is a body corporate; that the defendants and each of them employed the plaintiff to visit various places to confer with various persons and to do other preliminary work in connection with the purchase by the defendants or any of them of a tract of land known as the Gray property ■oil the Mortli Point road, in Baltimore County, the ¹²³ defendants and each of them agreeing to pay the plaintiff, as compensation, five per cent, of the purchase price of the said tract; that the plaintiff undertook to render said services and did render such services and expended various sums of money in connection with the performance by him of his part of the contract,, and has performed his part of the contract; that notwithstanding the fact that the defendants and each of them purchased or caused or procured the purchase of said property, the defendants and each of them have failed and refused to pay the plaintiff the agreed compensation of five per cent, of the purchase price thereof, although the plaintiff has demanded the same.” The suit as instituted was against three defendants, the Bethlehem Steel Company, the Penn-Mary Steel Comjpany and Frederick W. Wood. By the instruction of the Court granted at the conclusion of the plaintiff’s evidence, the jury was directed to render a, verdict for the defendants-, the Penn-Mary Steel Company and Frederick W. Wood, leaving the suit thereafter only as between Mr. Domberg, as plaintiff,, and the Bethlehem Steel Company, as defendant.

The first three counts in the declaration were the common-counts in assumpsit, ou an implied contract; while the fourth count sets out a specific contract, and it needs no citation of authorities for the proposition that a plaintiff cannot recover in the same suit upon hath aii implied and express contract. An express contract being thus- alleged, the only consideration is whether the proof tends to establish the same, and second, whether there is such a variance between the contract alleged and the proof given as to require an instructed verdict for the defendant. The contract of the parties as alleged in the fourth count is of a very vaglue character, the allegations being that the plaintiff was to “visit various places-, to confer with various persons, and do other preliminary work in connection with the purchase” of the Gray property. ¹²⁴ There is nowhere alleged in terms that the plaintiff as a broker was to make the purchase, and the plaintiff says of the interview with Mr. Wood, at the time when the supposed agreement was made, that “the first conversation was a general talk”; but he further, in answer to questions, speaks of obtaining the amount of acreage of certain tracts, of which the Gray tract was one, and the price or prices at which they could be obtained. He nowhere in his evidence particularizes any other service which he was to render in connection with .acquiring the property for -the Bethlehem Steel Company, but in his testimony he does claim to have rendered other ■services, which found their culmination in the transfer of the Gray property to the Steel Company, and apparently conceives that he was the