Parker v. Power

⁵⁹⁹ Pattison, J., delivered the opinion of the Court. In this case the action was brought to recover three hundred and seventy-five dollars alleged to- be owing by the appellee to the appellant, as commissions, for procuring for him a loan of seven thousand and five hundred dollars. The case was tried by jury in the Circuit Court for Howard County, and at the conclusion of the testimony offered by the plaintiff and defendant the case was taken from the jury under the instruction that there was no legally sufficient evidence entitling the plaintiff to recover. Other prayers were offered but were not acted upon and the only exception found in the record is to the granting of the aforesaid prayer.

The evidence of the plaintiff discloses that the defendant, an officer of the United States Army, after some correspondence with the plaintiff, a member of the Baltimore City Bar, called at the latter’s office in the City of Baltimore, in the early part of May, nineteen hundred and thirteen, and as the plaintiff testified “he told me that he had looked at two places in Howard County, one of which he would buy, and he asked me if I would loan him a certain amount on an inheritance of his wife in New York, and a certain amount of money on one or the other of the two places he would buy.” It seems that on this occasion no definite answer was given him, but on the defendant’s second visit to the office of the plaintiff, the party having the money to loan, Mr. Mc-Colgan, was sent for and was introduced to the defendant and he told Captain Power, the defendant, that he did not care to loan any money on the inheritance, but that he would loan upon either of the farms that the defendant might purchase. The plaintiff states in his testimony that he at that time “informed Captain Power that this loan would be subject to the usual interest and commission.” This he says was satisfactory to the defendant and he with Mr. McColgan visited the farms mentioned. At the first farm visited by them they learned that the wife of the owner, Mr. Earp, was non compos mentís and because of this fact they gave no ⁶⁰⁰ further thought to a loan upon that property. They next visited the farm owned by William I. Harding, and after examining it, they concluded that they “could loan” upon it six thousand dollars, and communicated this fact to- the defendant.

At this time it seems Mrs. Harding was not willing to join with her husband in a conveyance of the farm to a purchaser, but later, on May 23rd, 1913, the defendant sent to the plaintiff from Port Caswell, N. C., the place at which he at the time was stationed, the following telegram — “Mrs. Harding has agreed to convey; husband gives her one-third purchase money; have arranged for ten thousand from estate; will you loan six thousand first mortgage, wii’e reply my expense.” To which telegram plaintiff on the same day wired reply — “Will accept loan of $6,000 subject to usual commission 5% and title fee,” and in response thereto the defendant, on June 2nd, wired plaintiff “Will accept loan on terms offered, letter in full today.” The following is the letter referred to: “Fort Caswell, N. C., June 2nd, 1913. “Mr. W. W. Parker, “Attorney-at-Law, “Baltimore, Md. “My Dear Sir: “Confirming my telegram of this date, beg to advise that we would want the loan requested, sometime between now and June 30th. I am expecting in the mail today the $10,000.00 that is to be advanced on the interest in the estate, and the contract with Mr. and Mrs. Harding is ready to be signed as soon as the deposit of $1,500.00 is forwarded, which will be done as soon as this money is received. Mr. and Mrs. Harding arranged their difference by an agreement whereby Mrs. Harding will receive one-third of the purchase money 'in lieu of her dower rights. This disposes of her objection to signing and under the contract, which both will sign, they will give a deed not later than June 30th. ⁶⁰¹ “We have concluded to ask for a loan of $8,000.00 and will take a loan for that amount if you and Mr. McColgan will advance that sum.

We are paying $14,000.00 and this will give us about $4,000.00 above the purchase price all of which will be used in making permanent improvements on the place and in purchasing brood mares and other necessary live stock. “I will advise you as soon as the contract is signed so that you can go ahead and examine title. I suppose you can send the mortgage to us here for acknowledgment, so it can be returned to you before the deed is signed. You can then pay over the money to the Hardings upon execution of the deed and date the mortgage same day; or will you want us to come to Baltimore for that purpose? “With kind regards, and hoping I will soon be a resident of your, State, I am, • “Very truly yours, “Carroll Power.” Upon the receipt of the aforesaid letter the plaintiff submitted to McColgan the request for a loan of $8,000.00, but he declined to lend more than $6,000.00 upon the property. The plaintiff then took the matter up with another client Frank R. Rutter of Washington, I).

C., and on June 12th wrote defendant saying: “I have written my client recommending a loan of $7,500.00 on your property in Howard County to be made subject to the usual commission of 5% and title fee and at the rate of six per cent, interest per annum. “This loan I have offered to another client than Mr. McColgan who will accept it, I feel sure, upon my recommendation, and when he shall do so I shall have Mr. McColgan' abandon the other loan of $6,000.00, which he previously agreed to take. “Kindly forward me reference to the title at once, so I may proceed with the examination and prepare the necessary papers, forwarding them to you for execution.” ⁶⁰² Mr. Rutter, as the plaintiff testified, “agreed to* make the-loan of $7,500.00 upon the property and this fact was told to Captain Power, upon his next visit fi> the plaintiff’s office. On this occasion the plaintiff says that he and the defendant “had a long talk about it,” and when asked to state what was said on that occasion he said “The substance of the talk was that I had secured the loan for him, and would be ready to put it through when he wanted it.” Q. “Did Captain Power agree to accept that loan?” A. “Yes, sir; subject to the usual commissions.” Q. “What were the usual commissions?” A. “A commission of 5% for securing a loan, a title fee for examining the title, and interest at six per cent. per annum.” The plaintiff not hearing from the defendant wrote him on July 9th saying: “I have been holding $7,500.00 for you since the middle of June. This money I have had an opportunity to invest several times, but I have not heard from you lately as to when you will want to use the same. “Accordingly, I am writing to know when you will wish the use of this money, because I am charging you with interest on the same from the time you told me you would want it.” ■ In answer to this letter Captain Power wrote him from Port Caswell, N. C., on July 12th, saying: “Immediately after my return here, July 2nd, I was sent off with my Company to the Western part of the State and have only just returned. I find a letter from the attorney for the Hardings declining the proposition I made; and, as the loan on the estate is still hanging fire I have decided that the time is evidently not propitious and will drop the whole negotiations for the present. “Of course I realize that I have kept your money waiting for investment and I will meet the interest charge.

Please make it as light as possible, however, for I am already at large expense and have aecom ⁶⁰³ plished nothing. As soon as money conditions are more favorable and I can command either enough of the estate or a ready loan on same, since the 1 year will expire November 15th next, I will take up the matter again and put it through, either the Harding place or some other place in that general section, will look at your place in Howard County if not already sold.” On 3 uly 22nd the plaintiff answered the above letter saying: , “I am very much surprised to learn from your letter of the 12th inst. that you do not want the loan which I procured for you at your request upon the Harding Property in Howard County. * * * I am entitled to my commission for procuring it * * * . I am enclosing a bill for same amounting to $375.00, being 5% on $7,500.00 the amount I obtained for you which is still at your disposal.” The plaintiff received no answer to this letter and he again, on August 16th, wrote defendant asking him for the payment of his commission, and not hearing from this letter he again wrote him on September 1st, and received a reply thereto from Davenport, Ohio, dated September 5th, saying: “Your letter in reference to your demand for a commission on a loan which was never made reached me while I was changing Station and I have not had time to answer. “You must have construed my reference to the fact that I was willing to pay any loss of interest on the money which you claim was being held for me as an evidence that I Was an easy mark, since you drop that claim for your alleged client; and come back with the astonishing demand for your own commission. “Your claim has no foundation either in law or justice. You advertised that you had money to loan and I sought you in answer to that advertisement.

I did not at any time commission you as my agent to seek a loan for me, but applied to you to get what you adver ⁶⁰⁴ tised you already had.- You stated to me your terms for making a loan would be the expense of title examination and five per cent, on the loan. You were fully aware at all times of the contingencies under which I was working and that the deal might not go through yet at no time during these negotiations did you claim to be acting for me, or tell me that you expected to be paid regardless of the completion of the transaction and any such intimation from you would have ended the negotiations then and there. “I have no desire to avoid any honest obligation, but this demand for commission from you as my agent, when you advertised and held yourself out to me as having money to loan, for which you charged commission when loaned, is such a wide departure from right and justice that I decline to pay. “You are of course at liberty to take any steps you deem proper.” The plaintiff testified upon cross-examination that it was not the understanding that the loan was to be accepted only in the event of the defendant purchasing the farm. He was then asked: “Q. And you say that at that time nothing was said by Captain Power about not taking the money unless he succeeded in buying one or two of the places mentioned? A. No; sir.

Captain Power called to see me about a loan, and I sent for Mr. MeColgan and introduced him to Captain Power. * * Mr. MeColgan was a man I knew had some money to- loan and I sent for him and introduced him to Captain Power. Captain Power told Mr. MeColgan about the