Summary
On error to the Supreme Court.
The declaration is upon a contract, under seal, entered into between Daniel Runkle, now deceased, and Lino Martinez, on the 2d day of November, 1881, and demands damages for the breach thereof.
It is recited in the contract that the city of Havana, in the-island of Cuba, was, at the date of the agreement, desirous-of constructing, or having constructed, water works to supply its inhabitants with water; that it was supposed that the city-would issue its bonds to the amount of $5,600,000 for that and other purposes connected therewith, and pay $2,200,000, in lawful money of the United States, out of the moneys realized from the sale of its bonds, to the person or persons-to whom the contract for the construction of the water works; should be awarded, and by it Mr. Runkle agreed that, in case-the contract for the erection and construction of the waterworks contemplated should be awarded to him or to parties, that he might name, or to parties in his interest, he would pay Martinez, out of the moneys’ paid to him, Runkle, or to-the person or persons named by him, or in his interest, by the city of Havana, on account of the work, the sum of $175,000, or, if the contract should be awarded at a priceless than $2,200,000, a smaller sum, the ascertainment' of which was provided for, and also one-eighth of the net profits-which might arise from work not within the contract, which-might be done in connection with the water works. Upon-his part, Martinez agreed that he would proceed to Havana, without delay, at his own expense, and there, as the representative of Runkle, use all lawful means and give all the time necessary to obtain the contract for Runkle or for persons named by him or in his interest.
The declaration avers that Martinez did proceed to Havana,, according to the requirements of the agreement thus made, and did procure the contract for the erection and construction of the water works for Runkle and Edward C. Maddison,. Walter H. Gilson and James H. Lyles, persons named by Runkle, and in his interest, at the sum of $2,200,000; that thereafter Runkle failed and neglected to carry out that contract, so that he forfeited all rights thereunder, and that, on. the 4th of August, 1884, Runkle requested and procured a-. cancellation of the contract for the purpose and with the efficacy of exonerating himself from the losses and liabilities he incurred to the city of Havana by his failure and neglect to carry out his agreement with it and obligations thereunder, and that thereby he put it out of his power to receive the $2,200,000, out of which he was to pay Martinez the $175,000, and thus committed a breach of the contract sued upon.
To this declaration Runkle pleaded, among other things, that Martinez did not procure the contract M'hich he agreed to procure; that he, Runkle, did not fail to carry out such a contract as he stipulated for with the city of Havana, and did-not request or procure a cancellation of such a contract; that he was ready to carry out the contract to build the contemplated water works, but the contract procured by Martinez,, which, among other things, included that work, was, by consent of all parties concerned in it, including Martinez, canceled ; that he, Runkle, did not, by any act or omission of his own, put it out of his power to receive the $2,200,000-under the contract that Martinez procured from the city.
Upon the trial of the issues joined, there were introduced* in evidence, upon the part of the plaintiff, Martinez, the contract sued upon; also an advertisement by the municipal-council of the city of Havana of a sale, on the 28th of March, 1882, of a loan of $5,600,000 to that city for bonds-of the city to be thereafter issued. The conditions of the-sale, having incorporated with them that which is called “fundamental provisions” of the loan and a general statement of the work required in the construction of the waterworks, among other things declared that each bidder should deposit $64,000 as a guarantee that he would abide the result of the sale; that the proposals of bidders should state either that the bidder would make the loan in cash, to be applied by the city to the purposes for which it was to be raised, or that he would make the loan and apply it himself, undertaking to build the water works for the amount estimated at his own cost; that the purposes of the loan were:
1. To pay a credit of the Spanish Bank of Havana, with some interest.................$3,272,982 85
2. To pay the estimated cost of the works and storage and distribution of water and that of the additional works relating to the latter and approved as extraordinary...... 2,199,144 00
3. To pay the costs and taxes incurred by the constitution of the mortgage, of issuing the bonds and unforeseen and eventual expenses of legalization, drawings, &c.... 127,873 15
$5,600,000 00
and that the basis of bidding should be the bonds of the city at eighty per cent, of their face or par value; also, a document which is styled the award of the municipal council of Havana, and is dated April 5th, 1882, in the form of a certificate by the secretary of the council of the municipality, under direction of the mayor and under the seal of his office, among other things reciting that two proposals were made at the sale, one by Don Emeterio Zorrilla, who offered to take the loan for his own account at the rate of eighty-one and one sixty-fourth per cent., he to apply .that sum to the purposes set forth in the conditions of loan and construct the water works according to the estimate, &c., upon condition that he should have the management of certain property and revenues to be pledged for the security of the loan ; the other by Don Lino Martinez, in behalf of “ E. C. Maddison of London and Walter H. Gilson in his own right and as representing Messrs. Daniel Runkle and James H. Lyles of New York,” who offered to take the loan for the account of the persons indicated, at the rate of eighty-one and one thirty-fifth per cent., in one sum, in pounds sterling, those persons to apply the sum to the purposes set forth in the conditions and to construct the water works according to the estimates, &c.; that the proposal of Martinez was adopted and ratified by one Overmann, as attorney for Maddison, and by Walter H. Gilson, as attorney for himself and Messrs. Runkle and Lyles; that the proposal of Zorrilla was rejected because of the condition which he attached to it, and the loan was awarded to Martinez, who took the oath required by law and accepted the “ award of the loan ” on behalf of Maddison, •Gilson, Runkle and Lyles, undertaking for his principals well and faithfully to perform under the guarantee of deposit he had made; that the municipal council, by its resolution, approved the award of the loan to the individuals represented by Martinez, to wit, Overmann representing Maddison, and Gilson representing himself’ Runkle and Lyles; also, that the powers of attorney held by Overmann and Gilson from their principals were examined and found to be sufficient in form.
The plaintiff also offered in evidence an agreement made on the 15th of April, 1882, between Maddison & Company, by Overmann, their attorney, of the first part; Gilson, of the second part; Lyles, of the third part, and Runkle, of the fourth part, which recites that the parties had contracted to lend the city of Havana $5,600,000 and construct water works, and had agreed between themselves to sever their enterprise so that Maddison & Company should alone make or procure the loan, and the other parties should not be responsible in that behalf, and so that Gilson, Lyles and Runkle should alone build the water works, and Maddison & Company should be in nowise responsible therefor, and that the parties had taken contracts from the city of Havana accordingly, and provides that Maddison & Company will procure the loan according to their contract and indemnify the other parties from all obligations in respect thereof; that the other parties will construct the water works according to their contract and save Maddison & Company harmless in respect thereof; that Maddison & Company will pay the others $2,200,000 for building the water works, as the work progresses according to the contract’s requirements; that Lyles and Runkle thereby ratify every act theretofore done for them by Gilson, concerning the dealings had with the city of Havana, touching the matters"'in question; that the agreement was to bind the successors, heirs, executors, administrators and assigns of the respective parties.
There were offered in evidence four powers of attorney, the first, dated on the 6th day of March, 1884, by Runkle and Lyles to Martinez, authorizing him to take measures for them to “withdraw, suspend and cancel the adjudication of said loan, together with all the incidents thereof in due form;33 the second, dated on the 26th day of June, 1884, by Gilson to Jose Manuel Mestre, which recites that Gilson is assignee of the interest of Maddison, and authorizes Mestre, for him, in his right as an original contractor and also as assignee of Maddison, to take such proceedings as may be necessary to rescind and cancel the contract for loan and construction of the water works, and to collect the share of the $64,000 deposit which properly belonged to him; the third, dated on the 24th day of July, 1884, made by Runkle and Lyles to Martinez and Mestre, ratifying the power theretofore given to rescind the contract aforesaid and giving more ample power to accomplish the same end; the fourth, dated on the 25 th of July, 1884, and made by Gilson to Mestre and Martinez, conferring the same powers as to him that were conferred by Runkle and Lyles in their second power of attorney.
The plaintiff also offered in evidence an agreement between Martinez, of the one part, and Gilson, for himself and Runkle and Lyles, of the other part, dated on the 27th of March,. 1882, which, in effect, guaranteed to Martinez the return of the $64,000 deposit made with his proposal, and assigned to Martinez $25,000 out of the moneys which might be had for building the water works by certain percentage as they should be paid.
Next, the plaintiff offered a document, dated August 4th, 1884, which was in the form of a certificate by the secretary of the municipal council of Havana, reciting that Martinez and Mestre had exhibited their powers of attorney from Runkle, Gilson and Lyles, and, the powers proving sufficient, that the contract of March, 1882, with the city of Havana, was duly rescinded and the $64,000 deposit was restored to Martinez and Mestre, in pursuance of authority from the municipal corporation, so that all parties are free from the obligation of the contract rescinded.
Upon offering these documents, without further evidence, the plaintiff rested. Thereupon the defendants moved that the plaintiff be called upon these grounds:
First. That the contract obtained by Martinez was not the contract contemplated in the 'agreement sued upon.
Second. That the plaintiff is estopped from asserting any right in this action by reason of the rescission which he procured to be made.
The court denied the motion, and, upon such denial, error is, among other things, assigned.
The defendants then offered in evidence — First. A letter by Martinez to the mayor of Havana, in November, 1881, seeking instruction whether the proposed loan to the city could be negotiated for privately or must be .awarded through public bidding. Second. A letter from Martinez to Eunkle, in February, 1882, in which Martinez asks Eunkle to advance •the $64,000 necessary to deposit to secure the contract of loan and deplores the possible loss of the contract if Eunkle shall fail to respond affirmatively to his demand. Third. A letter from Martinez to Jose M. L. Mestre, one of the lawyers of Eunkle, enclosing a newspaper in which were published the bases of the proposed loan by the city of Havana. Fourth. A translation of the Spanish duplicate agreement of severance •of the contract of loan. This Spanish agreement is between Overmann, the representative of Maddison & Company, and Gilson, for himself and as the representative of Eunkle and Lyles. It is dated March 29th, 1882, and recites that the parties have undertaken conjointly to make the loan of $5,600,000, and have agreed, in the determination of 'their respective rights and obligations, that, notwithstanding the obligations of Gilson, Eunkle and Lyles to the municipality of Havana, the loan is to be for the exclusive and sole account of Maddison & Company, and that Gilson, Eunkle and Lyles shall not be responsible for its production, and that Maddison & Company shall respond to Gilson, Runkle and Lyles for' all damages because of failure by them to execute the contract of loan; also that Gilson, Runkle and Lyles shall be contractors for the erection of the water works, at the price of $2,200,000, which sum Maddison will pay to them, and that Gilson, Runkle and Lyles will pay to Maddison & Company, any damage which the latter may sustain by any failure in the former to carry out the part of the contract which relates to the construction of the water works, and in the document Gilson declares that the stipulation above s.tated was agreed upon before the proposal for the loan to the-municipality was made. Fifth. An agreement dated November 11th, 1882, between Gilson and Martinez, reciting the contract of loan with the city of Havana and the transfer of the loan part of it to Maddison, and the fact that Maddison had transferred such loan part to Gilson, who thereby became-solely entitled to the rights and interests of the contractors in the loan, and that Martinez was agent in procuring the contract, and providing that Martinez should be the financial agent of Gilson at Havana, so far as relates to the loan, upon, terms and limitations defined. Sixth. Another agreement of the same date as that last mentioned, between the same parties,. touching a division of the profits from the loan. Seventh. A letter from Martinez to one Gordon, at London, dated September 10th, 1883, suggesting a scheme by which the impatience of the authorities of Havana at the long delay in the production of the loan might be quieted. Eighth. A letter' from Martinez to Lyles, dated March 8th, 1884, in which Martinez writes:
“Your favor of the 1st inst. came duly to hand, in which you announce, by next mail, the remittance of the power to-rescind the contract.
“ You speak in that letter of a current report of my being in negotiations with the Spanish Bank, and I must tell you in reply that if it were possible for me to do such a thing, I would gladly oifer you a share of the benefits, but unfortunately it is not so. The impossibilities to do the business. under the present circumstances, are quite out of question. No one can do it at present, not even the Spanish Bank, but in case they should undertake it they will not need or have any of us. I am well aware of it, for I have offered the business to them twice and they have refused it. "What would I get by another trial ? Another refusal only.
“ Up to the present time I know not whether Mr. Gilson sends the power or not, and I beg you to do your best and ask Mr. Eunlde to use his influence with Mr. Gilson, so as to get this document from him.
“He must know by this time that there is no hope to save the business, and that it is of the greatest impossibility to do it even with the money on hand.”
Ninth. A letter, dated March 27th, 1884, from Martinez to Emmett E. Olcott, of New York, one of the firm of lawyers known as Olcott & Mestre, employed by Eunlde— Olcott managing the New York office of the firm, and Mestre managing the Cuban office — which is as follows :
“ Having been informed by the letters of Messrs. Eunlde, Lyles & Gilson that you are the lawyer who took part in the drawing up of the powers of attorney for the rescission of the contract for the municipal loan in this city, I have not hesitated to apply to you to-day by cable to ask you to inform those gentlemen of the necessity I am in of having those documents in order to save the deposit of $64,000 (sixty-four thousand dollars, gold) that I made to make the proposals to such loan, and that was guaranteed by contract of March 27, 1882.
“Mr. Mestre, to whom the powers of attorney of Mr. Eunlde & Lyles have been forwarded, has asked me for a letter declaring that I do not propose to avail myself of the rescission of any right to my own advantage, and also that I release the contractors from all liability therein, and I have not had any question in telling it to him, since I have not to their prejudice any plan, project or idea of other business negotiations. I send you herewith a copy of that letter.
“ This is a copy of the telegram :
‘Runkle, Lyles, Gilson, care Olcott:
“ ‘ 35 Broadway, New York.
“‘Urge forwarding, pending powers, I protest damages delay.
“ ‘ Martinez.’
“ I have done in this matter all that it has been possible for me to avoid damages and claims, but if I do not have the powers I have asked for in time, that is, of all contractors, I will find myself in the unfortunate, but necessary, position of enforcing my rights.
“ I hope that your valuable information will avoid all difficulties and make a happy ending to an incident, the settlement of which without doubt is legal as well as proper.”
Tenth. A letter from Martinez to Mestre, also dated March 27th, 1884, as follows:
“ In accordance with your wishes, in order to satisfy the persons represented by you in the matter of the municipal loan of this city, I have the greatest pleasure in addressing this to you, wherein I declare that I have no purpose in concurring in representing them in the rescission of the contract for the loan to utilize any rights, nor to obtain any advantages of this rescission hereafter, on account of any other negotiations in view leading to such course, nor do I have consequently any idea to carry out to the injury of the present contractors, and no other desire moves me than that of saving the deposit made by me and guaranteed by them.
“ I also certify by this letter that I release the contractors represented by you from all ulterior liability as to the obligation, from the moment in which the contract for the loan being rescinded the sixty-four thousand dollars in gold of the deposit have been recovered by me; for which purpose all the contractors should provide me in due course with special powers of attorney in that regard, and not doing so they will be liable for the damages that may result by reason of the delay besides that stipulated in the contract of March 27th, 1882.”
Eleventh. A letter from Martinez to Runkle, dated April 19th, 1884, in. which Martinez writes:
“ The postponement and delays in sending the powers to Mr. Mestre have created new difficulties which will surely cause great delays, and more still, a danger, because if the municipality should change their mind the deposit would be in peril to be lost. Had I received the powers in time there would not be such risk at present.
“ Should the deposit be forfeited I would have to blame the postponers of the powers for the troubles and difficulties that may arise.”
Twelfth. A telegram from Martinez to Runkle and Lyles, dated March 27th, 1884, urging the forwarding of the powers of attorney. Thirteenth. A telegram, dated July 18th, 1884, from Mestre and Martinez to Olcott, asking that a more ample power of attorney than the powers of March 6th and June 26th, to cancel the contract of loan, accept the return of the deposit and give the municipality of Havana a general release, be sent by “ to-morrow’s steamer.” Fourteenth. A telegram, ■dated July 22d, 1884, from Mestre and Martinez to Olcott, asking that power of attorney requested by telegram of July 18th be sent by the first steamer. Fifteenth. A telegram from Mestre and Martinez to Olcott, dated July 23d, 1884, asking if the power of attorney is coming.
The defendants prove by Mr. Olcott that, in order to induce Mr. Gilson to sign the power of attorney made by him in •July, 1884, Mr. Runkle paid him $10,000.
The defendants then rested, and requested the court to instruct the jury to return a verdict in their favor. This request was refused, and upon its refusal the defendants have assigned error.
The trial judge, among other things, instructed the jury that if they should find that the plaintiff did procure the contract or award of loan from the city of Havana, intended in pursuance of the agreement of November 2d, 1881, with Mr. Runkle, and that such contract was accepted by Mr. Runkle as performance of the agreement between him and Martinez, then, although the contract was afterwards rescinded by Runlde and his associates, in connection with Martinez, Martinez should recover what his services in theprocuration of the contract were reasonably worth without reference to the $175,000 agreed to be paid to him for procuring the contract.
Acting under this instruction, the jury returned a verdict in favor of the plaintiff for $17,500.
Both parties assign error upon the instruction.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
