Wood v. Standard Wholesale Phosphate Co.

Stocicbridge, J., delivered the opinion of the Court. This is a suit for broker’s commission upon a sale of acid phosphate. The foundation for it arose from two contracts; the first, dated October 23rd, 1916, and the second, November 1st, 1916. The first contract was as follows: “Baltimore, Maryland, October 23rd, 1916. “Sold to Messrs.

Hollingshurst & Company, Inc., of London, England, and New York, for account of Standard Wholesale Phosphate Company of Baltimore, Maryland: “Quantity and Guarantee. ⁶⁵⁵ “Twelve thousand (12,000) tons of acid phosphate made from restored acid, to be in good mechanical condition, milled and screened, analysis guaranteed 16% available phosphoric acid. “Price. “Nine dollars and seventy-five cents ($9.75) per ton of 2,000 pounds, delivered to vessel, less 1%, at seller’s works, Baltimore, in bulk. “Shipment. “As called for by buyers, two thousand (2,000) to three thousand (3,000) tons each, November to March, both inclusive, reasonable notice to be given sellers. “Analysis. “By Wiley & Company or Gascoyne & Company, Baltimore, from samples drawn in duplicate at time of shipment, cost of same to be at buyer’s expense if guarantee is sustained, otherwise at sellers’ expense, and pro rata deduction to be allowed for any deficiency. No charge for excess. “Weights. “Goods to be billed on sworn certificate. Buyers, to have the option of having a representative present to check weights and see that samples are properly drawn. “Settlement. “Payment for each shipment by sight draft with weight, analysis certificate and mate’s receipt attached. Payment to be made in Baltimore, or Baltimore funds, at Alexander Brown & Sons. “Commission, 10 cents per ton to Henry H. Wood, broker. “It is mutually agreed and understood by both sellers and buyers that the above contract is made subject to suspension in case of fire or other unavoidable accidents to the machinery or works of the producers or users of the material, or any other interference by which they are prevented from producing or using the material; otherwise to be carried out in good faith. ⁶⁵⁶ •“Executed in duplicate, buyers and sellers each furnished with a copy of this Sale Note. “Standard Wholesale Phosphate Co., “Accepted. “Accepted: George A. Whiting, Prest. “Cost of test to be paid by sellers. “G. A. W.” The second contract was identical in terms except that it was for “One cargo of two thousand (2,000) to three thousand (3,000) tons” instead of twelve thousand (12,000) tons as mentioned in the first contract, at a price of ten dollars ($10) per ton instead of $9.75 per ton specified in the first contract.

As against this first contract the following shipments were made: Per S/S Hercules, 5,521.890 tons; per S/S Thalia, 1,703.190 tons; and per S/S Uranus, 1,588.190 tons, making' in all 8,813.270 tons. On the commission to the plaintiff, as broker, there has been paid to Mr. Wood the sum of $881.26, leaving a small balance unpaid so far as the first contract is concerned. For some reason or other there were no further shipments or deliveries made than the three mentioned, and this suit has been brought by Mr. Wood to recover the small balance under the first contract, and $300 claimed to be due under the second contract. The case was tried before the Judge of the Superior Court of Baltimore City, sitting as a jury.

The only evidence given was on behalf of the plaintiff, .and upon that evidence the court granted a prayer directing a verdict for the defendant. Judgment was entered accordingly, from which judgment the present appeal was taken. There are but two questions in the case, both of them questions of law. The first is as to the right of the plaintiff to full commission under the contract of October 23rd, where but a partial delivery was made; and the second, whether ⁶⁵⁷ die plaintiff is entitled to any commission whatever under the terms of the contract of November 1st.

Reference was