HUTTIG v. JOHN PAUL LUMBER CO., 243 F. 539

BAKER, Circuit Judge (after stating the facts as above). McMillan, a real estate broker in Chicago, in late July, 1912, met Musser, of Muscatine, Iowa, in Chicago and told him that the Florida lands of defendant were for sale and asked him if he would be interested. Musser said that he would, and that one Roach and he were interested in lands in the same locality, and he thereupon called Roach on the phone. McMillan thén wired defendant in Florida, and in response thereto R. H. and J. J. Paul, of defendant company, arranged to come to Chicago on August 8th.

That day McMillan met them, and took them to plaintiff’s room in a Chicago hotel. Plaintiff was a relative of Musser, lived at Muscatine, was engaged in the sash and door business, and occasionally sold property on commission. At plaintiff’s room the contract in question was executed, and plaintiff employed McMillan to work thereunder. Musser was said to be the man with money, able to buy, and already interested in Florida lands. Roach was not financially able to make the proposed purchase.

The Paulshad known Roach for several years, during which there had been negotiations between them concerning the sale of these lands. In our judgment, the' evidence establishes beyond any reasonable inference to the contrary that the parties went to Muscatine tire next day for the purpose of initiating a deal in which Musser was the new and dominating element, that at Muscatine such a deal became pending, and that neither plaintiff nor his agent McMillan was “the .procuring cause” of any other deal.

There is a dispute in the evidence whether, at the Muscatine meeting, Roach mentioned “associates.” He testified that he named O’Brien, Howe, and Stephenson (who were fellow stockholders in Gulf Land Company, a Florida corporation) as associates-who might become interested in the deal. Pauls testified that no one was mentioned but Musser and Roach.

On the motion for a directed verdict the trial judge was bound to accept Roach’s version, and he did so, but held that under the evidence it was immaterial whether the proffered deal was one with Musser and Roach, or with Musser, Roach and others, because neither plaintiff nor defendant contemplated a deal except with Musser in. We think he was right. McMillan originated the negotiation by presenting the question of purchase to Musser. McMillan went to Muscatine repeatedly to try to induce Musser to buy. Plaintiff also worked upon Musser.

So far as this-case is concerned, that was the extent and the end of their efforts. Officers of defendant also tried to forward the Roach and Musser deal. The pending deal was always referred to in conversations and in correspondence between the parties as the Roach and Musser deal. Musser’s interest apparently continued until the last of September, when Roach told the Pauls (and McMillan did likewise in November) that. Musser would not go on. And Musser in fact had no part or interest in the sale that was subsequently made.

In March, 1913, defendant sold a half interest to the Gulf Land Company, a Florida corporation, for $800,000, being $100,000 less than the lowest and last price made or authorized by defendant during the pendency of the Roach and Musser deal, or during the 60 days plaintiff had “to get parties interested.” Gulf Land Company was organized in the spring of 1912. It was not mentioned by any one in-connection with the Roach and Musser deal, and Roach was not authorized to act for it. Defendant had no knowledge of its existence-till after Musser withdrew.

Its president, O’Brien, testified without dispute that he had long known about the Paul lands being for sale; that he knew the price the Pauls were asking prior to August 8, 1912: that neither plaintiff nor McMillan (whom he met a number of times after August 8th) ever said anything to him about the Paul lands; that the rules of the company required the approval of all stockholders for purchases of land; and that a purchase of the Paul lands by the company never interested him at all until he learned in the spring of 1913 that a half interest could he had for $800,000. ■ We believe the trial judge was correct in telling the jury, in substance, that there was no basis in the evidence for a reasonable inference that plaintiff, through any acts of his own or of others on his behalf within the 60 days from August 8, 1912, was the procuring cause of ihe sale to the Gulf Land Company in Aiarch, 1913, and that a party upon whom lies the burden of proof is not entitled to a verdict on conjecture.

The judgment is affirmed.