Weiss v. Northern Dredge & Dock Co.

Owutt, J., delivered the opinion of the Court. This is an appeal from a judgment of the Baltimore City Court on a directed verdict for the defendant in the short note case of a non-resident attachment proceeding instituted by Bernard M. Weiss against the Korthern Dredge and Dock Company to recover compensation for services which he claimed to have rendered it, in onnection with the sale of its dredge the “Patuxent”. The Korthem Dredge and Dock Company, hereinafter referred to as the “Dock Company,” was in 1925 and 1926 engaged in business as a dredging contractor, and in connection with that business it owned several dredges, one of which, the “Patuxent,” located at Davis Island, Florida, it was willing to sell. Weiss, who appears to have been at that time engaged principally in selling marine and contractors’ equipment on commission, on December 3d, 1925, telegraphed the Dock Company inquiring whether it had “any fifteen or eighteen inch hydraulic machines available for sale prices and delivery.” When he made that inquiry Weiss appears to have had no definite purchaser i n view, and it was but a step in a course or plan which he had adopted in connection with his business, which was to discover some person who had property for sale, to secure the privilege of selling it for a commission, and then to look for a purchaser.

At that time there appears to have been a very strong and widespread demand for Florida real estate, and land values there had risen to such a point that companies engaged in the development and sale of such property were having land, adantageously located, but which was not salable because of its low and swampy character, drained and filled in so as to adapt it to their uses. As a result of that situation dredges suitable for such work were much in demand, and, because ³⁵⁴ of that demand, Weiss appears to have thought that, if he could secure the privilege of selling the appelleee’s dredge, he would be able to find a purchaser who would buy it at a price which would yield him a substantial profit. And so, when he was informed by the Dock Company, replying to his telegram, that it had an eighteen inch dredge which it would sell for $80,000, he at once asked for specifications. Answering that request the Dock Company on December 10th, 1925, sent him a-telegram and a letter, setting out in detail the specifications of the dredge, telling him that it expected to be able to make delivery by January 1st, 1926, and quoting a price of $80,000 at Tampa.

Upon receipt of those communications Weiss on, December 17th telegraphed the Dock Company as follows: “Your wire also letter tenth full particulars received. While deep draft steam operated hydraulics not in as great demand as twelve inch dissels I have two excellent buyers and believe can dispose of. I desire submit dredge with full particulars name specifications etc and assume price net to you seventy six thousand dollars. Will work on basis securing this figure net to you and any amount or overage above this price to myself and parties whom I am working with.

Please advise if agreeable to you for me to work on this basis if you will protect me on whatever overage I quote with understanding that any buyers I bring to Tampa or may refer to you will either be quoted figure I name them or will be referred back to me. If this arrangement agreeable to you this places me in position give prospective purchasers all necessary information regarding machine where located for inspection and of course I mil immediately notify you to whom I am quoting machine so that I can be protected. Believe can get results for you if secure your cooperation and might mention have already sold four machines in last five weeks wire answer.” And in reply to that telegram the Dock Company on December 18th telegraphed Weiss: ³⁵⁵ “Referring your wire seventeenth our price to you will be seventy six thousand dollars net if you quote much over eighty thousand on this outfit you are liable to kill your deal better keep price down and make a quick sale you can depend on us to cooperate with you any inquiries from your customers will be referred back to you.” After he had received that telegram, Weiss set actively to work to sell the dredge. He advertised it extensively, and personally and through his assistants attempted to interest various persons who might have use for it in its purchase, and he also engaged Harry P. Guión of Yonkers, .New York, who was in the same business, to aid him in selling it.

After he had arranged to assist Weiss, the Snell Island Company, Inc., which was engaged in land development in Florida, informed Guión that it wanted a dredge, and after some negotiations with other persons he told Weiss of the inquiry and asked him if he had an eighteen inch dredge for sale. Weiss replied that he had, the “Patuxent,” and gave him a price of $100,000 to quote the Suell Island Company, and Guión, on December 24th, offered it to that company at that price. On the same day Weiss telegraphed the Dock Company that the Snell Island Company had wired for particulars concerning the dredge, and that William Smith, a “practical dredge man,” would inspect it “for Snell,” warning it to make no mention of price and telling it he was holding the dredge at $100,000. On December 26th the Dock Company wired Weiss: “letters and wires reed our Mr. Foley inspecting twenty inch dredge for Snell of Saint Petersburg have no offers out on dredge Patuxent except to yourself hope American ^British Improvement Company can make inspection at once as we expect to move plant to new location about Wednesday next sooner than expected and if sale is made would like to make it before going to moving expenses.” From then, on until January 20th, 1926, Weiss reported to the Dock Company from time to time concerning various ³⁵⁶ persons to whom he was trying to sell the machine.

But on the latter date the Dock Company wired him to call off any negotiations he might have for the sale of the Patuxent, because it was closing a deal to sell it. The “deal” to which the Dock Company referred was with the Snell Island Company, and subsequently it did sell the dredge to that ocmpany for a price which it said was less than $80,000, but the precise amount of which does not appear in the record. After the sale had been made Weiss wrote the Dock Company, telling it that he had been “advised” that it had sold the dredge for $80,000, and further saying: “This transaction was covered.in my wire to you of Dec. 24th and your reply of Dec. 26th. Of course, it is quite possible that you sold the machine for more than $80,000.00.

I am inclined to believe that the dredge would have brought $90,000.00, but as it is your machine, quite naturally, you had the first say, and all I was trying to do was render service. I take it that you were fully convinced that this was the most you could secure from them. “I am enclosing herewith a bill for my commission in the amount of $4,000.00, and would request that check be forwarded to me as soon as the payment is made. I understand that the dredge is now on dry-dock and will not actually be turned over to Snell until some time next week. I had hoped to make out better than this on the transaction, for, as it now stands, my expenses were close to $1,000.00 and as I have to divide the remainder with my associate, Mr. Guión, it nets me only about $1,500.00.” To that letter Harry Merritt, for the Dock Company, replied : “Replying to your favor of the 26th inst., I regret the necessity of taking issue with you in the matter of your bill for $4,000.00, which you claim to be due you for an alleged commission on the sale of the ‘Patuxent,’ but the dredge was not sold by or through you, therefore, no commission is due you. ³⁵⁷ “The dredge was sold to Snell Isle, Incorporated, at considerably less than $80,000.00, the direct result of negotiations started by us long before we bad had any correspondence about it with you.” Some time after that Weiss had an interview with Luden Merritt, president of the Dock Company, at which he told Merritt that he would send him a bill for $4,000.

Merritt told him that there was “no question in the world but what there was something coming to him,” but, since all the negotiations were conducted on behalf of the company by Harry Merritt, be, Luden Merritt, did not think it would be right to settle the claim unless Harry Merritt were present. There was some further negotiation but nothing came of it, and on April 1st, 1926, Weiss instituted this proceeding, and the attachment was levied on certain property in the possession of Lancaster Iron Works, Incorporated. In due course the property attached was, upon the filing of a bond by the Lancaster Iron Works, Inc., discharged from the attachment, the Dock Company appeared and filed pleas to the short note, and that case proceeded to trial. At the trial, upon the conclusion of the plaintiff’s, case, the court directed a verdict for the defendant, and that ruling is the subject of the eighth and most important exception presented by the record.

Because the effect of the prayer involved in that exception was to concede the truth of such evidence as supports the plaintiff’s claim, and as well all inferences of fact, which may fairly and legitimately be drawn from it, such facts as the plaintiff’s evidence tends to prove have been stated in narrative form, although it seems hardly necessary to add that presumption does not extend beyond the consideration of that prayer. The entire transaction between the Dock Company and Weiss in reference to the sale of the dredge was conducted by written and telegraphic correspondence, from which it may be inferred that Weiss’ object was. to' sell the dredge for the highest possible price, so as to increase the “overage” which ³⁵⁸ he would receive as his commission, while the Dock Company was more interested in a speedy sale of the dredge than it was in Weiss’ commissions. E'or while the Dock Company at the outset told Weiss that the selling' price of the dredge was $80,000, and in its letter of December 18th strongly advised him to keep' the price down, and warned him that if he quoted a price much over $80,000 he would “kill” the sale of it, Weiss, as soon as he was authorized to sell it, fixed the selling price at $90,000, which he increased to $100,000 as soon as the Snell Island Company indicated a willingness to consider its purchase. There is nothing in the record to support the inference that the Dock Company had given Weiss the exclusive privilege of selling’ the dredge, so that it unquestionably had the right at any time to terminate its arrangement with him and sell the dredge directly, but the real question in the case is whether it could sell it to a purchaser procured by him at a lower price than he was authorized to sell it for, without first giving him a fair opportunity of selling it to such purchaser at a price which would yield him a profit, without becoming liable to compensate him for his services, and that question is presented by the appellee’s granted prayer, which was in this form: “The Court instructs the jury that there is no evidence legally sufficient under the pleadings in this case to entitle the plaintiff to recover herein, as there is a variance between the contract specially declared on and the evidence offered in support thereof and therefore their verdict must be in favor of the defendant.” One theory of that prayer is that the pleadings committed the plaintiff to recovering: on a specific contract, and that, since the evidence was not legally sufficient to permit him to recover on that specific contract, he was not entitled to recover at all.

In other words, it was intended as a variance prayer, but as a variance prayer it was defective in form, because, while it relied upon a variance between the pleadings and the proof, it. failed to1 indicate what the variance was. Calt ³⁵⁹ rider v. Weant, 147 Md. 338 ; Balto. & O. B. Co. v. Walsh, 142 Md. 237 ; Baltimore v. Terio, 147 Md. 333 ; Ditto v. Wolf, 153 Md. 449 ; Fidelity & Dep. Co. v. Beneficial Loan Assn., 153 Md. 188 . And its effect, if it had any effect at all, was that of a general demurrer to the evidence.

Calt rider v. Weant, supra; Ditto v. Wolf, supra; Fidelity & Deposit Co. v. Beneficial Loan Assn., supra. Considered as a general demurrer to the evidence, the only question which it