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carried on bond and mortgage at four per cent., with a proper sinking fund to retire the bonds when due, running, say, ten years. This land is free from all incumbrances, aud a deed in fee, with general warranty, will be given the purchaser by Mr. Sullivan.
"Wharf at Pensacola, Fla. "In addition to this land, Mr. Sullivan owns a wharf at Pensacola, Fla., which is the principal wharf in the city. It comprises some seven acres, and is filled in with stone, and from eight to ten ocean-going vessels can load from the dock at one time. A double-track railr ad belonging to Mr. Sullivan runs on this wharf, connecting with the L. & N. R. R., so that cars from the L. & N. can run on the wharf to a ship's side, and be unloaded from the car into the ship. There is also a large bo m in connection with this wharf, into which timber can be unloaded to a wait arrival of vessels, and from there loaded into the ships. The price of this wharf is $100,000. It can be purchased in connection with the lands, or not, as the purchaser may desire. But together, these lands and wharf, with the mills in operation, make the most valuable property of this character in the Southern states. Sullivan's timber lands are well known in the South by all timber merchants, and are regarded as the pick of that section."
"New York, Nov. 16th, 1899. "Vemorandum of agreement this day entered into by and between Martin H. Sullivan, of Pensacola, Fla., and W. D. Mann, of New York City, witnesseth: Martin H. Sullivan agrees to sell and convey by general warranty deed in fee, as hereinafter provided, his timber lands situated in the state of Alabama, in the counties of Escambia, Conecuh, Monroe, and Baldwin, comprising about two hundred and fifty thousand (230,000) acres, together with all mills, booms, and other fixtures now thereon; also railroads situated now on said lands in the county of Escambia; also the wharf property in the city of Pensacola, Fla., now known as 'Sullivan's Wharf,'--for the sum of one million six hundred thousand dollars ($1.600,000), up n the following terms and conditions, to wit: The said W. D. Mann is forthwith to select some one or more persons to go upon said lands and wharf and examine sa me, and make a report as to the amount of timber per acre on said lands, and value thereof; as to the number of mills and booms on same, condition and value; as to the railroads on same, condition and value; and as to the wharf property in Pensacola, Fla., its condition and value; also as to any and all matters upon which the said Mann may desire inforination in regard to said property. Said examination and report is to be made within sixty (60) days from this date Upon the examination of said report, if it shall appear that the statements set forth in the written memorandum given to the said Mann as to said property are substantially correct, then the said W. D. Mann undertakes and agrees to cause to be organized, under the laws of the state of -, a corporation, to be known as the
Company, with an authorized capital stock of $- (to be fully underwritten at par by bona fide solvent underwriters), and with power to issue bonds for one inillion dollars ($1.000,000), with interest at four per cent. (4%) per annum, payable semiannually, and due and payable ten (10) years after date, with a sinking fund (f ten per cent. (10%) per annum, to be paid in redemption of said bonds, and to cause said company, when organized, to purchase from Martin H. Sullivan said lands, mills, booms, railroads, and wharf property for the sum of one million six hundred thousand dollars ($1,600,000), to be paid as follows: Five hundred thousand dollars ($500,000) to be paid in cash, and one million dollars ($1,000,000) to be paid in the authorized bonds of said company, due and payable as above set fortlı, and fully secured by a first mortgage on all the lands, mills, railroads, wharfs, and other property of said company, and one hundred thousand dollars ($100,000) to be paid in the shares of the capital stock of said company at par. The said Martin H. Sullivan agrees and contracts to convey by deed in fee, with general warranty, the said two hundred and tifty thousand (230,000) acres, more or less, of timber lands, together with the mills, booms, railroads, and all other fixtures now thereon, and the wharf in Pensacola. Florida, to the said company, and receive payment for same as above set forth. This agreement is to be fully executed within ninety (90) days from this date. Witness our hands and seals in this sixteenth day of November, 1899
M. H. Sullivan.
"W. D. Jann. "Tiitness in presence of:
"W. A. Milliken.
"F. W. Weeks." The defendant, Sullivan, demurred to the declaration, and as grounds of demurrer assigned the following: "(1) It is alleged in said count that the plaintiff was employed to sell the property of defendant, and it is not alleged that any sale was ever made. (2) It is alleged in said count that the plaintiff was employed to sell the property of defendant, and it is not alleged that any sale was ever consummated, or that it failed of consum mation by the fault of the defendant. (3) It is alleged in said count that the plaintiff was employed to sell the property of defendant, and it is not al. leged that any sale was ever made, but only that a contract was made for a sale; and it is not alleged that any sale resulted from said contract, or that the parties contracting to buy were able to do so, or that the sale failed of consummation by reason of any fault of defendant. (4) It is alleged that the plaintiff was employed to make a sale, and it is only alleged that a contract of sale was made; but it is not alleged that any sale was made, or that it failed to be made on account of any fault of defendant. (5) It is not alleged that any sale was made within sixty days from October 12, 1899.” The circuit court overruled the demurrer. The case went to trial on pleas that were tiled, and resulted in a verdict and judgment for the plaintiff, Milliken, for $77,890.70. The defendant, Sullivan, brings the case to this court on writ of error, and assigns that the circuit court erred in overruling the demurrer to the declaration. The view we take of the case makes it unnecessary to state and decide the many other exceptions and assignments of error contained in the record.
Thomas H. Watts, H. Bisbee (John B. Jones, F. G. Caffey, and Alexander Troy, on the brief), for plaintiff in error.
W. A. Blount, W. W. Howe (A. C. Blount, Jr., on the brief), for defendant in error.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
SHELBY, Circuit Judge, after stating the case as above, delivered the opinion of the court.
Did the circuit court err in overruling the demurrer to the declaration? This is an action by a broker against his principal for commissions for selling real estate. The declaration should contain a statement of facts which entitles the plaintiff to recover. No fact material to recovery should be left to inference. By considering what it is necessary for the plaintiff to prove in such case, we ascertain what must be alleged in the declaration. The issues to be tried involve the questions: (1) What did the broker undertake to do? (2) Has he completed the undertaking within the time and upon the terms stipulated? (3) If not, is his failure attributable to the fault or interference of the principal? If on investigation it be determined that the broker has performed his contract within the time and upon the terms agreed on, he is entitled to his commissions. If he has not, he has earned no commissions, unless performance by the agent was prevented by the fault or wrong of the principal. To entitle him to recover, he must prove, and therefore he must allege, (1) that he was employed as an agent or broker to sell the property; (2) that he sold it at the price and on the terms fixed by his principal, or on other terms agreed to by him, or that he found a purchaser ready, willing, and able to buy the property at the price and on the terms fixed or agreed to by the principal; and, if the saie was not made, that the failure to conclude the same was caused by some fault of the principal. The undertaking of the plaintiff was to sell the property. This is specifically averred, and the written authority to sell is made Exhibit A to the declaration. Addressing the plaintiff, the defendant wrote:
"I hereby authorize and empower you to sell my pine timber lands,” etc. (briefly describing the property and stating the price). “This authority to remain good for sixty days. I will make a deed, with general warranty, to the purchaser.”
The plaintiff acted under this authority. His undertaking, therefore, was, clearly, to sell. The plaintiff, having been employed to sell the property, prepared, at the request of the defendant, an elaborate description of it. In this prospectus he estimates the number of acres; describes the booms, sawmills, and railways; states the value of the timber on the land, the amount of lumber that could be put on the market from the lands, and states the several sources of revenue from the lands. This estimate and description is made a part of the declaration, as Exhibit B. It tends to show the property to be worth much more than the price asked for it. It is not alleged that the defendant was in any way responsible for its contents. He did not sign it. He did not sign any agreement alleging that the statements of this memorandum are true. It is only referred to in the contract between the defendant and Mann as "a written memorandum given to the said Mann." There is no averment that Sullivan gave Mann the memorandum, or that Sullivan knew of its contents. This memorandum was made by the plaintiff, and no fact is alleged that would make the defendant responsible to the plaintiff for the truth of its statements. the declaration can be construed to make Sullivan responsible to Mann for the truth of the prospectus, it certainly cannot be held, on its averments, that he ever represented to Milliken that the prospectus was true. Milliken, it is averred, and not Sullivan, is its author. It is the plaintiff's handiwork. There is no claim asserted in the declaration that sale was prevented by the wrong or interference of the defendant. The case, therefore, depends on the allegation as to performance on the part of the broker. It is not alleged that the plaintiff sold the property. It is not alleged that he found a purchaser ready, willing, and able to buy the property. As a substitute for these averments, usual in suits by brokers to recover commissions, the plaintiff alleges that:
"In pursuance of the said employment the plaintiff procured that the defendant and one W. D. Mann should and did on November 16, 1899, enter into a written contract by which the defendant agreed to convey the property mentioned in the written authority and memorandum hereinbefore set forth as Exhibits A and B [which memorandum is the memorandum referred to in the said written contract] to a corporation to be organized by the said Mann as set forth in the said agreement, and the said Maun agreed to cause the said corporation to be organized, and to pay to the defendant for the said property five hundred thousand dollars in cash, one million dollars in the first mortgage bonds, and one hundred thousand dollars in the stock, of the said company, all of which is set forth in the said agreement, which is hereby referred to, and, as Exhibit C, hereto attached and made a part hereof for greater particularity and exactness.”
The plaintiff, therefore, bases his right to recover on the fact that he procured Mann to make a contract with the defendant on November 16, 1899. The claim is that the plaintiff is entitled to the commissions sued for, because he procured Mann to make this contract. If his contention is well founded, his right to the commissions accrued as soon as the contract was made. There is no averment as to what followed the making of the contract. The case made by the declaration ends with the signing of the contract. It is not alleged otherwise that Mann became the purchaser of the property. The agreement is made a part of the declaration. Reading it, we find that it is clearly binding on Sullivan to sell if Mann finally agrees to buy. But it clearly does not bind Mann unconditionally to purchase. Mann agrees "forthwith to select some one or more persons to go upon said lands and wharf and examine the same, and to make a report as to the amount of timber upon said lands, and the value thereof.
Upon examination of said report, if it shall appear that the statements set forth in a written memorandum given to the said Mann as to said property are substantially correct," then, and in that event only, Mann agrees to organize a corporation to buy the property on terms stated in the contract. The contract as to Mann is tentative, his acceptance being dependent on the result of an investigation to be made in 60 days. Can it be true that, as soon as this contract was signed, the plaintiff, who was employed to sell the property, was entitled to commissions, whatever the person or persons selected to examine the property might report? If the prospectus was untrue, was he entitled to commissions? Has he earned the commissions, under an employment to sell, by preparing a prospectus showing the great value of the property, and finding a customer who agrees to take the property if the description and estimated values are substantially correct? Did Sullivan, when he signed the contract with Mann,-a contract not binding on Mann unless Mann's investigations confirmed Milliken's prospectus,become indebted to Milliken for commissions on the agreed price ? Consider the question in this way: The authority which Sullivan gave Milliken to sell the property, of course, authorized him, as Sullivan's agent, to make a written offer to sell it. Except for the changes as to the terms of sale, he might well have signed as agent for Sullivan the contract with Mann. Now, if he had signed an agreement binding his principal to convey the land to Mann on the terms and at the price named in his authority, and Mann had agreed to buy the land, if, on the report of experts to be appointed to examine it, it was found that the prospectus prepared by Milliken was substantially correct, would Milliken be entitled to commissions, as on a sale, whether Mann completed the purchase or not? Whether the land was examined by the experts or not? Whether the descriptions and estimates prepared by Milliken were true or not? We cannot think he would have earned his commissions by making such contract. To so hold would give the agent great advantage of his principal, and would encourage him to exaggerate the value of the property in his dealings with customers. If he was reckless in his descriptions and extravagant in his valuations, he might easily find a customer to contract to buy the property if it was found to be as valuable as the agent said it was. Such performance, surely, would not entitle him to commissions.
To show that the contract is binding on Mann, it is said that Sullivan could recover damages for the failure by Mann to complete the purchase. This proposition need not be examined further than to say it is clear that such damages could not be recovered without alleging and proving that the prospectus prepared by Milliken was substantially correct, or at least that the persons appointed to examine the property reported it so. An action for damages might lie on the averment that it was Mann's duty to appoint persons to examine the property, and that he failed to do so, and that the prospectus was substantially correct. But the declaration in question contains no averment of fact which shows that a recovery could be had in damages by Sullivan in a suit against Mann for a breach of the contract.
It is also said that the contract in this case was one of sale, because it could be specifically enforced. The question on this suggestion here is, could it be specifically enforced against Mann, admitting the averments of the declaration to be true? That it is a contract to sell that could be enforced by Mann against Sullivan, if Mann performed his part of the contract, may be admitted. Sullivan bound
But Mann has not bound himself unconditionally to purchase.' He stipulates for time to have the property examined, and agrees to purchase only in the event that it is found to conform to the prospectus. When it appears by the contract, in its express terms, that it was intended to be binding upon one of the parties alone, it may be specifically enforced against that party, although the remedy cannot be granted to him against the other party. Pom. Cont. § 169. The declaration in this case does not describe a contract for which Sullivan would have a remedy in equity for specific performance. Mann agreed to buy on condition that the prospectus was shown to be substantially correct, and there is no averment that it is correct. Unless the property met this requirement, there was no "true contract" of sale. Id. $ 334. The prospectus not being substantially correct, the contract would not bind Vann, or at least he could revoke it. A court of equity will not enforce specific performance against a party who has the power of revocation. Southern Exp. Co. v. Western North Carolina R. Co., 99 U. S. 191-200, 25 L. Ed. 319. The contract pleaded is not a completed sale, and, on the facts averred in the declaration, it is not a contract that Sullivan could specifically enforce against Mann. Mayer v. McCreery, 119 N. Y. 434, 23 N. E. 1045. The declaration shows nothing done by Milliken to earn a commission, except to procure the making of the contract with Mann. To show a legal
himself to convey.