RUSSEL STURGIS, Plaintiff and Respondent, v. THE NEW JERSEY STEAM NAVIGATION CO., Defendant and Appellant.
The admission of the allegation in the complaint, “ That Drew, the president of the Company, was authorized to manage its affairs, and to make contracts on its behalf," by the defendant, rendered it unnecessary to give any proof on that subject.
The contract was that plaintiff should have five per cent, on the earnings of certain steamboats, if he succeeded in chartering them to the U. S. Government ; plaintiff negotiated a charter at $800 a day for the full term of one month, and as much longer as the vessels were required by the U. S. Government at the same rate.
This was a charter for one month, and so much longer as the U. S. Government retained the vessels in its service. The earnings were under the charter, and plaintiff was entitled to his commission upon the whole earnings of the vessels under the charter, and not merely to the earnings of the month alone; that by the terms of the charter the government were absolutely bound to keep the vessels in its service.
The whole ea/rnings, of the vessels under the charter should form the basis for estimating the plaintiff’s compensation (Howland ®. Coffin, 47 Ba/rb. 653).
Before Monell, Sedgwick, and Van Vorst, JJ.
Decided February 1, 1873.
Appeal from a judgment.
The action was to recover broker’s commissions for effecting the charter to the United States Government of two of the defendant’s steamers.
It was conceded that the defendant made a contract with the Government by which the steamers were chartered; which charter was to remain in force “for the full term of one month from the above date, and as much longer as said vessel may be required by the United States War Department. One of the vessels was retained by the government for 239 days, and the other for 210 days.
*252This action was not brought until after the expiration of those periods.
On the trial the plaintiff testified as follows:—
I called upon Mr. Drew on the 17th of February, 1862, at his office ; I found him there almost alone; there was one person sitting by the stove, and I think one -clerk in the office; I told Mr. Drew I was aware that the government would be requiring steam vessels for transportation, of all classes and sizes ; I asked him if he had any vessels of their line that were at leisure that he would like me to charter, provided I could do so; he answered: “ Yes, yes,” and spoke of the Vanderbilt and of the Commodore. * * * * *
I asked him to give me the particulars of the Commodore and Vanderbilt; he took me into the back room and looked over a book that lay on the shelf, but appeared not to be able to find what he wanted ; he said to me : “Captain Jake Vanderbilt will be in here soon, by 11 o’clock, and I will send him to you to give you theinformation; he said he wanted $1,000 dollars a day for these boats ; that they were in first-rate order and of good capacity.” I said: “Very well, my commission is five per cent, on the earnings of these boats if I charter them to the government.” He said: “Very well,. I will give it to you, and I wish you would take the others.”
He further testified that he offered the vessels to the U. S. quartermaster, who directed Capt. Loper to examine them. After they had been examined, plaintiff went with Capt. Loper, and saw Mr. Drew. Capt. L. said he would recommend the vessels at $800 a day. Mr. Drew consented to that. Whereupon he, plaintiff, said to Drew, “ This of course carries my commission of five per cent.” “Yes,” said he.
The vessels were chartered at $800 a day each. Mr. Drew was the president of the defendant’s company; and it was alleged in the complaint, that as such presi*253dent, he was duly authorized and empowered by the defendant, to manage the affairs of the company, and to make and enter into contracts on its behalf. This was not denied.
An action was made to dismiss the complaint on the ground that the authority of Drew to bind the defendant was not shown. The motion was denied.
On the part of the defendant, Mr. Drew denied that he had employed the plaintiff to procure a charter, and -denied the alleged agreement for commissions.
The defendant requested the court to charge, that the recovery could only be for commissions, upon one month’s earnings under the charter, and not for the whole period the vessels were retained by the government. The court refused so to charge.
The court submitted the disputed question of fact to the jury, who found for the plaintiff.
From the judgment the defendant appealed.
Mr. Charles Jones, for appellant.
Mr. Wm. Allen Butler, for respondent.
By the Court.—Monell J.
The defendant’s admission of the allegation in the complaint, that Drew, as president of the company, was authorized to manage its .affairs, and to make contracts on its behalf, rendered it unnecessary to give any proof on that subject. The .general power thus admitted to have been vested in the president, was of course sufficient to authorize him to make the contract which is the subject of this action.
The motion to dismiss the complaint was, therefore, properly denied.
The question of fact in dispute, was submitted to the jury for their determination, and as the appeal is from the judgment only, we are not at liberty, even if it were necessary, to question the correctness of this conclusion.
*254The principal question arises under the request to charge the jury, that the recovery should be limited to commissions on the earnings for a month. This request was refused, and the court charged in effect, that the recovery might be predicated upon the earnings under the charter for the whole period the vessels remained in the government service.
The duration of the charter was, “the full term of one month from the above date, and as much longer as said vessels may be required by the United States War Department ; ” and the per diem allowance was for “ each and every day said vessel may be employed.’ ’
There was no option on the part of the charterers. They parted with all control on the vessels, so long as the government saw fit-to employ them in its service ; and they did not reserve any right whatever to cancel the charter at the end of a month, or at any other time. That right rested wholly with the War Department. It had the option to terminate the contract at the end of the month, or to continue it for a longer and indefinite period. It was not, therefore, a charter for a month, except at the will of the government. For a month, it was a charter, and could not, probably, be terminated short of that time, by either party. But for a continuance beyond that period it required no new contract. The exercise of the government’s option was alone sufficient, and then it became a charter for so long a time as the vessels remained in the government service.
The agreement, as the jury found it, was a commission of five percent, on the “ earnings” of the boats under the charter; and as under the charter the two vessels remained in the service of the government for the aggregate period of 449 days, earning the handsome sum of about $360,000, it was not incorrect to hold that such earnings were the proper basis for estimating the plaintiff’s commissions. If such earnings were not under the charter which 'the plaintiff had procured, *255then the payment by the government of the large sum of money which the defendant received was without any authority whatever. But no such allegation is made, and the defendants admit that they received the money as the earnings under the charter.
In Howland v. Coffin (47 Barb. 653), the agreement was, to pay commissions on the charter, so long as the vessel remained in the government service. After a period of several months, the per diem allowance was by mutual agreement, endorsed upon the charter, reduced from $200 to $125, and it was claimed that the commissions should cease at that time. But it was held, that the change in the allowance did not annul the charter, or terminate the period to which the plaintiff should be limited, as the earnings under the charter. In other words, that the new agreement affected only the amount of the earnings, and did not deprive the plaintiff of his commissions on the reduced sum, so long as the vessel remained in the government service.
The construction of the court, therefore, was correct, that the whole earnings of the vessels under the charter should form the basis for estimating the plaintiff’s compensation.
The question on the cross-examination of the plaintiff, the exclusion of which was excepted to, may have been properly excluded, on the ground that it had already been answered. The immediately preceding question was, “ Was it not a matter of public notoriety, that vessels were wanted by the government \ ’’ Answer: “It was not:” then the witness answered, “this was a special expedition.” Instead of moving to strike out the addition, the defendant’s counsel said, “ I have not asked you that question ; I ask, whether it was not a matter of public notoriety, that vessels were wanted by the government ? ” This latter question was excluded, and properly so, for the reason stated. Besides, it was of no *256consequence as affecting any of the questions in the case.
The judgment should he affirmed.