
    W. Preston Hix, Appellant, v. Edison Electric Light Company, Respondent.
    
      Corporations—construction of a contract to pay a percentage to the “present promoter” of a corporation — evidence dehors the contract — estoppel — a principal cannot, by bartering away a fund, defeat the agents commissions — what does not constitute a consent thereto by the agent—measure of damages—stock representing earnings is not “ increased capital?’
    
    In an action brought to recover upon a contract of employment executed between the plaintiff and the defendant, pursuant to which the plaintiff claimed to have promoted the organization of a corporation, known as the Philadelphia company, it appeared that the first branch of the memorandum, which contained the written evidence of the contract, recited that, of the 81,000,000 of the capital of the proposed Philadelphia company, the defendant was to receive thirty
    • per cent in stock, and five per cent in cash; the “ promoters ” to receive ten per cent in stock, which was to be rebated from the thirty-five per cent of the defendant, and the plaintiff to receive five per cent from the defendant’s balance of twenty-five per cent. The second branch of the memorandum referred to future increases of capital, and stated that in the event of increases of the capital stock of the Philadelphia company thirty-five per cent of increases of stock should go to the defendant, and a rebate therefrom of five per cent to the “ present promoter.”
    The main issue in the. action was whether the plaintiff was entitled to five per cent of the increased capital of the Philadelphia company as being the person referred to as “ present promoter ” in the memorandum.
    Upon the trial the court considered that the memorandum was not sufficiently clear to indicate who was meant by the term “present promoter,” and permitted evidence, extrinsic of the contract, to be given. By this extrinsic evidence the questions were presented whether it was not understood that the plaintiff could not succeed without the co-operation of persons in Philadelphia, who were generally called “promoters,” and that, while they were the persons referred to in the first branch of the contract as the ultimate recipients of a portion of the fifteen per cent, nevertheless the transaction was solely with the plaintiff; that the plaintiff was the only person with whom the defendant had contracted to pay compensation for organizing the Philadelphia corporation, and was the person referred to in the second branch of the contract as “present promoter.” The court directed a verdict for the defendant.
    
      Meld, that the action of the court in admitting evidence extrinsic of the contract was proper;
    ‘That where evidence of the character referred to is admitted, if there is no real conflict in thé evidence, the question of the construction of the contract is still one of law for the court;
    That where, as in this case, there is a real conflict in the evidence, the question must be passed upon by the jury ;
    That where there is an overwhelming preponderance of parol evidence in one direction, a verdict contrary thereto will be set aside by the court;
    That in the present case the court erred in directing a verdict for the defendant. Upon the trial of the action it appeared that several years after the contract was made with the plaintiff a contract was made between the defendant’s successor and the Philadelphia company, by which the former reduced its percentage on future increases of stock from thirty-five to ten per cent, and the latter, upon its part, surrendered to the former its right to transact a certain branch of electrical business in Philadelphia. The plaintiff, who was a stockholder of the Philadelphia company, voted in favor of executing this contract, and bought or was allotted part of three successive increases of stock subsequently made by the Philadelphia company.
    
      Meld, that, although the plaintiff’s conduct in the premises operated as his consent, both as an individual and as a stockholder, to the execution of the last-mentioned contract, the plaintiff was not estopped from enforcing the defendant’s obligation to give to him the five per cent in question.
    It was further insisted by the defendant that a condition precedent to the plaintiff’s right of action was unfulfilled, in that the plaintiff’s five per cent was to be a rebate from the thirty-five per cent which the defendant was to receive, which the defendant, as a matter of fact, never had received.
    
      Meld, that this position was untenable, as the principal could not, of his own motion, bargain away his rights to a fund, out of which the agent was to receive his reward, and thus deprive the agent of such reward.
    It was claimed that the plaintiff had, in other dealings with the defendant, assented that it might fix the “time and manner ” of payment in transactions upon which he was entitled to commissions.
    
      Meld, that such an assent did not empower the defendant to barter away its rights to a fund altogether;
    That, in any event, as the record showed that upon one occasion the defendant had collected its ten per cent of increased stock from the Philadelphia company, the plaintiff was presumably entitled to recover his proportionate part of that;
    That the measure of the plaintiff’s damages was the value of his percentage of the stock, to which the defendant was entitled, at the time when the plaintiff might have received it but for the agreement which reduced the percentage to which the defendant was entitled.
    
      Of the three increases of stock by the Philadelphia company, the first represented earnings of the company used by it in betterments or an increased plant; the second and third were issued for cash.
    
      Held, that the increase of stock represented by earnings of the company put into' betterments did not represent increased capital, and that the plaintiff was not entitled to recover five per cent upon the amount of that increase.
    Appeal by the plaintiff, W. Preston Hix, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, entered in the office of the clerk of said court on the 25th day of June, 1895, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of said- court, and also from an order bearing date the 20th day of June, 1895, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John C. Tomlinson, for the appellant.
    
      Eugene H. Lewis, for the respondent.
   Patterson, J.:

Prom the somewhat confused record of the colloquy between the court and counsel, just preceding the conclusion of the trial of this cause, it is difficult to ascertain the precise ground upon which the case was taken from the jury and a verdict directed for the defendant. The learned judge, however, stated that, if he took the view of the plaintiff's counsel, there would be a question for the jury whether after all the plaintiff was a promoter of the Philadelphia company, but that under the view which he (the judge) took (which view is not stated) that question was immaterial to the determination of the cause. An examination of the whole record discloses that the underlying question involved in the case is whether the plaintiff was entitled to five per cent of the increased capital of the Philadelphia company as the person referred to as “ present promoter ” in the memorandum made by Johnson, and which contains the written evidence of the contract between the defendant company and Hix, for, as we understand the issues and the evidence, the case comes down to a consideration of that question.

The action was brought' by Mr. Hix to recover upon a contract of employment. He specifically declares upon such a contract in his complaint, stating the nature of that employment as being to promote and organize a corporation for electric lighting in Philadelphia, for which his compensation, it is alleged, was to be fifteen per cent of the stock of a company capitalized at $1,000,000, and in addition thereto five per cent of the stock upon any future increase of that capital. That the fifteen per cent was given him, or passed through his hands, is admitted, and his claim now is for five per cent upon an aggregate of $746,000 of increased capital of that Philadelphia corporation.

It appeared in evidence that the plaintiff had rendered service to the defendant from time to time in the organization of electric light companies in various cities of the United States, which companies were to conduct business as licensees of the defendant, and that after a protracted negotiation conducted by him respecting the formation of a company in Philadelphia of the character referred to, Mr. Johnson, the president of the defendant, signed and delivered to him a writing or memorandum which he introduced in evidence as the basis of his claim.

There can be no doubt, we think, that that memorandum constitutes the contract between the parties. It was so treated by the plaintiff, who, insisting that it was such, made strenuous efforts to have it admitted in evidence, and succeeded in so doing only upon producing proof to show that Mr. Johnson, who signed it on behalf of the defendant, was authorized to execute and deliver it as the ■representative of the defendant. The principal effort in the case made by the plaintiff was to get that memorandum before the jury. If it were not the contract, it was certainly nothing constituting documentary evidence binding the defendant, but was at best amere memorandum made by a witness. But it was made by Johnson, the president of the defendant; it was a reduction to writing of what was substantially agreed upon between Hix and Johnson respecting the matter covered by it. It was signed by the party to be charged; was delivered to the person who seeks to enforce it, and was accepted by him as the final evidence of what lie had agreed to with the president of the defendant. That memorandum, referring to the transaction of the organization of the Philadelphia company, is divisible into two branches, the first, so far as the plaintiff is •concerned, relating to the compensation to be paid him for his services. It recites, in substance, that of the $1,000,000 of which the capital of the Philadelphia company was to consist, the Edison company, the defendant, was to receive thirty-five per cent, thirty per cent in stock and five per cent in cash; the “promoters ” to receive ten per cent in stock, a rebate from the Edison company’s thirty-five per cent; Hix to receive five per cent from the Edison company’s twenty-five per cent. The second branch of the contract refers to future increases of capital, and the memorandum states, in substance, that thirty-five per cent of the stock of such future increases is to go to the defendant and a rebate of five per cent therefrom to “ present promoter.” The only ground upon which the plaintiff can claim the five per cent must be that it was he who was referred to as the “ present promoter ” in this second branch of the memorandum. Not necessarily that he was the “present promoter,” apart from and in addition to his agency proper, but that he was the present promoter as that function — whether performed directly or through others — was embraced within his agency. It was considered by the coiu't on the trial that this memorandum was not sufficiently clear in itself to indicate who was meant by the words “present promote),” and, therefore, with the consent or acquiescence of both parties, evidence was taken of the surrounding circumstances under which the contract was executed, and of what was done under it, in order that construction might be given to it in the light of such circumstances. It would seem from the phraseology of this memorandum that in its first branch a distinction in terms is made between those who came under the designation of promoters and Hr. Hix; for the compensation to be. given under that first branch is specifically divided between two separate parties, namely, promoters, as contradistinguished from Hr. Hix, and the latter, and Hr. Hix testified that Jameson and his friends were “ promoters.” The promoters were to receive ten per cent as distinct parties, so designated, and Hr. Hix was to receive five per cent; so that, if the ordinary construction is to be given to the second branch of the contract, with reference to “present promoter,” it would seemingly recognize the same distinction as that made in the first branch or subdivision of the contract relating to compensation. Even as the term is used in the first branch of the memorandum, however, it does not follow that the promoters were persons with whom the company was independently contracting. It is, in fact, clear that they were not. The plaintiff’s claim is that the contract was with him, and with him alone, and that the agreement was to pay him, and him alone — that the contract by this form of expression merely characterized the use to which a part of the payment was required to be put by the plaintiff. The learned judge having allowed, and, as we think, properly, this explanatory evidence, it becomes necessary to scrutinize the record to ascertain whether there was anything to be left to the jury concerning that question of fact. The rule is not disputed that where evidence of the character referred to is admitted to aid in the explanation and interpretation of the terms of a contract so that they may he given effect, if there is no real conflict in'the evidence, the question of the construction of that contract still remains one of law for the court, and the rule' is also conceded that where on the parol evidence there is an overwhelming preponderance, a verdict contrary thereto should be set aside by the court — but the jury must pass on the evidence where there is a conflict. The effort on the part of the plaintiff here was to show that he really was the promoter within the meaning of the second branch of the contract, or, if not the only one, that he was associated with other people in the enterprise as one of the promoters, and hence was entitled to recover as the party to whom the five per cent was to be paid. The testimony to establish that relation comes from himself, in connection with certain written evidence. The testimony of Hr. Johnson, whose connection with the company ceased long before this trial, is that Mr. Hix told him or gave him very definite information to the effect that the promoter was a Mr. Jameson of Philadelphia; and that Mr. Jameson was to some extent connected with the subject in that relation appears both by the testimony óf this witness and that of Mr. Hix himself. But an analysis of the proof leads to the conclusion that, upon the whole evidence, in the light of all the circumstances under which the contract was executed, the nature of the conversations and negotiations had between the plaintiff and Mr. Johnson prior to the signing and delivery of the memorandum, and the practical construction which the parties gave to that memorandum by their acts under it, it was for the jury to say whether the promoter entitled to the five per cent on increased capital was not the plaintiff as distinguished from any other persons connected with the organization of the Philadelphia company. It is observable that in the first branch of the memorandum, the plural “promoters” is used. In the second branch, the singular promoter ” is employed, the inference being, in connection with the proof offered, that the five per cent referred to was to be paid to some one person. It appears beyond controversy that Johnson, the president of the defendant, was treating with the plaintiff from the beginning to the end of the transaction, and with the plaintiff alone. There is nothing to show that at any time Johnson came into relations with any one else, except that at one time he was introduced to Jameson, but it is. clear that he did not make any arrangements with Jameson, nor have any negotiations with him. The fifteen per cent provided for in the first branch of the agreement was paid to the plaintiff, and he swears that he received it for those who were promoters. He also distinctly testifies on his cross-examination that he was not one of the promoters referred to in the first branch of the agreement, but notwithstanding that statement, he also indicates in his testimony that he was interested in the fifteen per cent, and that the responsibility was imposed upon him to get that fifteen per cent, and to pay part of it to those who were promoters ” in Philadelphia. That he was the person considered to be entitled to receive in the first instance this fifteen per cent, he claims is shown by the acts of the defendant with reference to that matter. It was given to the plaintiff; it was all paid to the plaintiff. He did pay ten per cent to those who practically established the Philadelphia corporation. He first received that ten per cent and delayed taking his own five per cent, but he was treated as the proper party to demand and receive all the fifteen per cent. On May 31, 1888, the defendant, in response to “ an application of the agent, Mr. ■ Hix, for payment of his agent’s and promoters’ commission for the formation of that (the Philadelphia) company,” passed a resolution to execute a written agreement as evidence of the plaintiff’s rights. This resolution recited that the defendant was to get $300,000 of the Philadelphia company’s stock, the agent and promoters one-half of this. It proceeded: “Although only sixty per cent of the capital of the company has been called in, they have issued our full percentage of stock, or $300,000, of which the agent now asks for the $150,000, to which he is not really entitled until after the entire present authorized capital of $1,000,000 has been paid in.” The expression “ agent’s and promoters’ commission ” is significant. It means the commission to which the plaintiff was entitled for his services as agent and for his disbursements to promoters. The agreement which the defendant resolved to execute is also highly significant. It recites that the Philadelphia' company was under obligation to pay the defendant thirty per cent of its capital stock, and that Mr. Hix is to receive from the light company (the defendant) one-half thereof; that the capital stock of the said Philadelphia company has been fixed at $1,000,000, of which only sixty per cent ($600,000) has been called in, upon which amount there would be due to the light company thirty per cent ($180,000), of which one-half would be due to Hix. The intention is to deliver to Mr. Hix a certain part thereof, to wit, 1,000 shares, amounting to $100,000, face value, as soon as the entire capital of the Philadelphia company, $1,000,000, as aforesaid, shall have been fully paid. Further, there is the statement that as soon as the whole of the Philadelphia company’s stock shall have been paid, there will be, transferred and delivered to Mr. Hix or his assigns certificates of stock in the said Philadelphia company, amounting to $100,000, face value, as payment on account of his claim for onelialf of the light company’s percentage. This arrangement was afterward carried out and payment made in the manner specified. There is another piece of evidence of some force in a former contract of the plaintiff on January 1,1885, and appearing in evidence, in which it is stated that, referring to the compensation in stock to be given to the plaintiff for service, “it is understood, however, that this liberal compensation is provided for you with the understanding that you are expected to use such part of it as may be necessary to compensate your correspondents or promoters for the assistance which they will give you.”

Now, all this evidence was not admissible and was not competent to establish any other contract than that which is contained in the memorandum, Exhibit “ B,” but it was admissible to show the situation and relation of the parties to each other, and what was meant by them in that contract with reference to promoters.. If it is true, then the contention made by the plaintiff, that through all this transaction these several facts existed and were controlling, was established, viz., that he was employed to organize a Philadelphia company, but that he could not succeed without the assistance and co-operation of persons in Philadelphia, who were generally termed promoters, who would have to be compensated for their services; and that in the adjustment of the amount which the plaintiff was to receive there was to be included a sum necessary to be paid to such persons under the general name of “ promoters; ” that while they are the persons referred to in the contract as the ultimate recipients of a portion of the $150,000, nevertheless the transaction was one directly with the plaintiff, and with the plaintiff alone, and that in the second branch of the contract, where the word “ promoter ” is used, there is a recognition of his individual right and status as the only other party to the contract with the defendant, to whom the five per cent on increase of capital is to be given for his services, and that through, the' whole contract as made there ran the one pervading element, that the plaintiff was the only person with whom the defendant was contracting to pay compensation for services in organizing the Philadelphia company, and that as a consequence all other persons operating with him were in privity with and could claim under or through or against him alone. The testimony of Hr. Johnson, fairly considered and given effect to, raises a distinct issue as to the surrounding circumstances in the light of which the contract was to be construed, and upon that issue we think the learned judge was correct in the first impression he formed and announced respecting the proper course to pursue at the trial, and that it should have been left to the jury to say which version they would take, that of the plaintiff with its seeming corroboration, or that of Mr. Johnson and certain letters of the plaintiff which appear to give support to what Mr. Johnson testified to. Had that been done, and the jury found a verdict for the plaintiff, we cannot say it would have been so clearly against evidence that it should have been set aside on that ground.

At the trial certain objections to a recovery were urged which influenced the trial judge in directing a verdict for the defendant. On July 15, 1892, a contract was made between the General Electric Company, the successor in interest of the defendant, and the Philadelphia company, whereby the former reduced its percentage of future increases in the stock of the latter from thirty-five per cent to ten per cent, in consideration of which the latter relinquished to the former the right to transact a certain branch of the electrical business in the city of Philadelphia. The plaintiff was a stockholder in the Philadelphia company when the proposition was made by the General Electric Company, and he voted in favor of it. After the contract was executed, the Philadelphia company made three successive increases in the amount of its capital stock. The first was of $200,000, and was distributed among the stockholders fro rata, and was so issued to represent the value of earnings put into betterments or increased plant. Plaintiff received his allotment of stock. The second increase, of $273,000, and the third, of $277,000, were issued for casli and plaintiff availed himself of his right to subscribe for a fro rata share of it at par, it. then being at about twenty per cent premium. It is said that the-plaintiff by consenting to the execution of the contract with the General Electric Company and benefiting by the subsequent, increases in the stock of the Philadelphia company, estopped himself from claiming his five per cent from the defendant. The elements of'an estoppel are not present. The basis of an estoppel is-action of one party leading to the other’s injury. The General Electric Company was not in jured or misled. It made a proposition to the Philadelphia company that the former surrender its right to twenty-five per cent of future increases of the stock of the Philadelphia company in consideration of the latter’s relinquishment of certain rights. That only did the General Electric Company bargain for, that it got, and that is all it was entitled to. To work from this situation a release of the plaintiff’s rights would be to-bestow a gratuity upon the General Electric Company. That company was not injured, neither was it misled. It knew that the-Philadelphia company could act only through its stockholders, of' whom plaintiff happened to be one. By favoring the proposition he was assisting the General Electric Company to obtain what it desired. It would be strange indeed if he were to be punished in the very serious manner suggested for so doing. What did Ms consent amount to under the circumstances ? It meant but one thing, viz., that he was willing his company should enter into the contract proposed, and did not believe that his interests as a stockholder would suffer thereby. If, in fact, the increase in the capitalization ■of the Philadelphia company was directly consequent upon the making of this contract and plaintiff benefited thereby, the defendant’s successor has absolutely nothing to complain of. It is argued that the plaintiff’s consent as an individual and as a stockholder cannot be dissevered. There is no such attempt. It is the plaintiff’s consent both as an individual and as a stockholder, but what ■construction is to be placed upon it ? Is it a release, strictly implied and not express, of a valuable contract right antecedently and independently acquired, the enforcement of which is in no way inconsistent with his act in voting as a stockholder in favor of the new ■arrangement made between the two companies? Such serious consequences will not be imputed as matter of law from the facts as they stand on this record, and it is impossible to spell out such an agreement on the plaintiff’s part as is claimed.

The next reason assigned against a recovery by the plaintiff is, that he was to be paid out of the defendant’s thirty-five per cent of future stock; that neither the defendant nor its successor has received this thirty-five per cent; and that consequently a condition precedent to the maintenance of the action is unfulfilled. Primarily the argument rests upon the terms of the contract itself. Plaintiff’s five per cent is to be a -rebate from the Edison Company’s thirty-five per cent. This doubtless signifies that the five per cent was to •come out of the thirty-five per cent, and, in the absence of special circumstances, the plaintiff would be obliged to wait until his principal had received the fund out of which his own compensation was to come. But the principal may not bargain away his right to receive the fund, and thus deprive the agent of the reward for his ■services. The latter has not agreed to any such thing as this, and the injustice of it is manifest. The principal might receive a full equivalent for the original fruits of the agent’s work, and yet not pay him a dollar. That the principal may not do this, without the ■agent’s express consent, we regard as a proposition too plain for further discussion. There is no such explicit consent evidenced by the terms of the writing.

It is said, however, that the extrinsic evidence shows that the plaintiff agreed to this very thing. In proof of this, prior contracts made by the plaintiff are pointed out. They were none of them in force at this time, but they undoubtedly furnish some evidence of the nature of the arrangement which subsisted throughout the defendant’s dealings with the plaintiff. It will be sufficient to cite, as an example of all, a six months’ contract made on January 1, 1885, with the Edison Company for Isolated Lighting. It provided, “ Tour (plaintiff’s) compensation is to be payable at such time as we receive payment of cash or stock due to ourselves, and proportionately as payments on account are made to us, we reserving the right to accept such terms in regard to time and manner of payment as we may elect.”' On this head Johnson testified: “ Whether in selling a dynamo for the Isolated Company, or whether he organized an illuminating company, he was to get his compensation from that which the company received, and in proportion and at the times received by the company. If subsequently — Mr. Hix thoroughly understands this •— the company elected,- for reasons which were sufficient to itself, to modify any contract, the agent invariably conceded to the company that right, and acquiesced in it.” The contract, it will be noticed, merely gives the right to fix the “ time and manner ” of payment. It is not a fair inference that the company had the right to refuse, arbitrarily, payment altogether, or to contract away its right to' receive the fund out of which the plaintiff was to be paid. Nor does Johnson’s testimony necessarily bear such an interpretation. He speaks of the company’s right to modify ” the contract, but this might well mean merely the privilege of changing the time of payment. Thus, even if we felt bound to hold, as matter of law,' that the prior arrangement as to payment of the plaintiff continued in force at the time the memorandum agreement was made, and constituted a part of the memorandum agreement, we can see nothing therein which, upon the facts of this case, should deprive the plaintiff of his share of the stock to which the defendant was entitled, and which, but for the supplementary agreement with the Philadelphia company, it would have received, always providing the jury shall find that the plaintiff was the present promoter within the meaning of the contract as already discussed.

In this connection it should be pointed out that the defendant’s successor remained entitled to ten per cent of future increases after the contract with the Philadelphia company, and that the record shows that in at least one case it collected this from that company. Thus the plaintiff was clearly entitled to recover something even if we are in error in holding that he was entitled to the full rebate as though the entire percentage of stock had been paid to the defendant in specie.

And here we may add that the respondent’s contention with regard to the receipt by the defendant of this ten per cent seems to us to be without any foundation. They say that the proof failed to show the defendant’s connection with the successor company. This point, however, was not taken upon the trial, nor was the case disposed of upon any defect of proof in that respect. On the contrary, what was deemed to be sufficient proof was furnished, and if the plaintiff inopportunely stopped, as the defendant contends, it was undoubtedly because the fapts as to the relations of the predecessor and successor company were assumed by both sides. It is a little late and hardly fair to raise this technicality now.

There is another question which will arise upon the new trial and which should now be considered.- The learned counsel for the appellant has suggested that the plaintiff might be entitled to five per cent of the value of the business taken in exchange for twenty-five per cent of the stock. We do not think that this would be the relief to which he is entitled. To so hold would interpolate into the contract something which is not there. The contract awards the plaintiff five per cent of the defendant’s thirty-five per cent of stock. As the plaintiff’s rights are not dependent upon the actual reception by the defendant of its stock, he will be entitled to the value of his percentage of the stock at the time when the defendant might have received it but for the contract of J uly 15, 1892. In connection with this subject it may be added that we do not think the plaintiff is in any event entitled to five per cent upon the first issue of increased stock. That was so issued as a dividend in lieu or replacement of an equal amount of money earned by the Philadelphia company and used in the expansion of the works or plant of the company. It was in reality earnings or a substitute for earnings belonging to the stockholders who presumably agreed to take those earnings in that form and was not new capital subscribed for as such. And that is evidently the only kind of increase of capital contemplated by the parties to this action in making the memorandum agreement.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Barrett, Rumset and Williams, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  