
    Ida D. Berry vs. J. Bernard French
    No.62086
   BAKER, J.

Heard jury trial ■waived.

Tlie plaintiff’s declaration in this case alleges that she is entitled to recover from the defendant by way of commission 15% of the sale price of a certain picture. The first count alleges this price to he $13,000, and the second count, $15,000. Added to these two counts are the common counts.

The defence is a general denial.

The facts in the case show that the plaintiff, who is more or less familial with art matters, lives in New York. She became acquainted in a social way with the defendant’s wife about a year before the transaction in question took place. The defendant, who lives in Bristol in this state, was the owner of a valuable portrait which he desired to sell. Through the suggestion of his wife correspondence was opened with the plaintiff. There is no question hut what the plaintiff did certain work in attempting to sell the picture, and in particular interviewed Mr. Bryson Burroughs, the curator of paintings of the Metropolitan Museum of Art in New York. Finally, the defendant’s wife went to New York and on ascertaining certain facts, the defendant terminated all business relations with the plaintiff. About a month or more thereafter, the defendant himself sold the picture to the Metropolitan Museum of Art for the sum of $13,000.

The plaintiff contends that she was employed by the defendant and acted as a broker in this matter and that, under the usage and customs regulating the sale of pictures, such as the one in question she is .entitled to a commission of 15%.

The law relating to brokers in this state is clearly set out In the case of Gross vs. Tillinghast, 35 R. I. 298, and has been followed in a numDer <jf decisions more recently rendered. Apparently if the broker is the effective agent in bringing about' the sale; if the sale is brought about through his efforts or negotiations; or if he has produced a purchaser who is able and willing to purchase on terms satisfactory to the seller, then he is entitled to his commission, even though the same may be finally consummated through the instrumentality of another person.

The plaintiff contends that the evidence in this case shows that she comes within this general rule. Tne defendant, on the other hand, argues that the facts in this case show clearly that the plaintiff is not entitled lo any commission.

After considering all the testimony in the case carefully, the Court is of the opinion that on the facts and on the law the plaintiff is not entitled to recover.

In the first place, the weight of tne testimony would tend to show that by agreement and understanding between the parties themselves the plaintiff was not to hold the defendant liable for any commission in case of a sale. The first figure which the defendant gave the plaintiff for the sale of the portrait was $15,000 net to him.

It can not be disputed that the early correspondence shows that the defendant apparently hopfed or expected that the plaintiff would be reimbursed in some manner lor her efforts, but as soon as the negotiations progressed to any definite point, he immediately inquired rrom the plaintiff as to whether or not she expected to collect any commission. This appears clearly from his letter of March 6, 1924, Plaintiff’s Exhibit E. In answer to this letter, the plaintiff replied, March 7. 1924. Defendant’s Exhibit 3, as follows: “You will not pay any commission to me. I will try to get á little out of the buyer.” In this connection see also the testimony of Mr. Burroughs (Depositions, pages 34 and 35)." He states clearly that Mrs. Berry told him she did not expect any commission from Mr. French. Mr. Burroughs is disinterested as far as this proceeding is concerned and the Court believes that his testimony is entitled to the greatest weight and credence. He is a man holding a high position in the Metropolitan Museum of Art, and would have no reason or inducement, in the judgment of the Court, to tell other than the truth. In other words, the Court is of the opinion that the great preponderance of the testimony shows clearly that the plaintiff did not intend to charge the ae-fendant any commission and that such was the agreement and understanding between them.

In the second place, the Court believes that the defendant was fully-justified in discharging -the plaintiff and terminating whatever relationship existed between them. The facts in the case show that during February and March the parties had considerable correspondence. About the middle of March the defendant’s wife went to New York and, after ascertaining certain facts there, noti(fied the defendant, who thereupon terminated his relations with the plaintiff.

A fair reading of the letters written by the plaintiff, in the Court’s opinion, shows intentionally misleading statements, and the defendant acting on the strength of these was actually misled. For example, the statement made by the plaintiff to the defendant that she had an offer of $12,000 was entirely false., This offer the defendant accepted by tele-, gram, reasonably thinking it was the offer of a Mr. Burroughs, and on the strength thereof shipped the picture to New York. As a matter of fact, the evidence shows that the plaintiff never actually received an offer of any definite sum for the painting from the Metropolitan Museum of Art or anyone else. Further the statement that a friend of hers was to buy the picture ana present it to the Museum was not true. Likewise, the statement that this friend was considering an historical portrait instead of the defendant’s picture was not correct. These statements comprise only some of the misleading facts mentioned in her letters. Taking these into consideration, together with the fact that she attempted to get the defendant, through his wife, to fix the price of the picture ias low as $9,000 or $10,000, and statements made to the defendant’s wife in New York, and statements that the picture had been offered to several museums, together with all -the other acts, as shown in the testimony, of which these are only some, leads the Court to believe that the defendant was fully justified in terminating the relationship.

It is clear from the testimony that the plaintiff knew that she could collect no commission from the Metropolitan Museum of Art. She also realized that she was not in a position to collect a commission from the defendant, and that being so, tue only way she could get remuneration for her services would be to get the Museum to buy at as high a price as possible and force the defendant to sell at a price lower than this, thereby enabling her to retain the difference. It is clear in the mind of the Court that she was working in this matter more for her own interest than she was for the interest of the defendant.

The fact that a principal can terminate an agency before the commission is earned has been recognized in this state.

McElroy vs. Carney, 124 Atl. 98.

The case of Hurley vs. Randall, 111 Atl. 530, bears some resemblance to the case at bar although It is not entirely similar.

The law seems well settled that a broker must act in good faith and in the interest of his principal, ani: must keep him informed ot all material facts affecting his interest which come to the broker’s knowledge. If he does not act in good faith, or if he conceals material facts, or if there is fraud, then he is not entitled to his commission.

C. J., Vol. 9, pages 536 to 539, and 566 to 568;

Sibbald vs. Bethlehem Iron Co., 83 N. Y. 378;

Cadigan vs. Crabtree, 186, Mass. 7;

Ebert vs. Haskell, 217 Mass. 209.

On all the facts and the evidence, therefore, the Court is of the opinion that the plaintiff in this case so conducted herself that the defendant was justified in terminating the relationship that existed between them and that she is not entitled to any commission.

The foregoing reasons seem to the Court to apply as much to the common counts contained in the plaintiff’s declaration as to the counts which specifically allege that a com-misssion is due.

Decision for the defendant.  