Anne Harnickell, as Administratrix, etc., Respondent, v. The Parrot Silver & Copper Company, Appellant

Anne Harnickell, as Administratrix, etc., Respondent, v. The Parrot Silver & Copper Company, Appellant. (Argued October 31, 1889; decided November 26, 1889.) Appeal from judgment of the General Term of the Supreme-Court in the first judicial department, entered upon an order made April 4, 1889, which affirmed a judgment in favor of plaintiff entered upon a verdict. This action was brought originally by Albert A. G. Harnickell, who died while the suit was pending, to recover $8,351.30 for commissions alleged to have been earned by him as broker in effecting a sale of copper for defendant. In May, 1882, defendant entered into a contract with Pope, Cole & Co. for the smelting of certain copper and the purchase of the copper by that firm, which was negotiated and drawn by Harnickell. It was conceded that Harnickell was the agent of Pope, Cole & Co. in procuring the contract so far as it related to the smelting of the ore, and was paid by them for such services. It did not appear that defendant offered or proposed to make more than a single contract, which was for the sale of their product to some ono who would smelt and refine it and pay according to results, and only that one was made. Defendant was represented by one Wallace, who wrote to Pope, Cole & Co., stating defendant desired to sell the product of its mine to them, and was referred by them to Harnickell, to whom Wallace then proposed the sale. Letters from Harnickell to Pope, Cole & Co. were introduced in ■evidence which advised them how they might obtain the property for the lowest possible price. Held, that plaintiff was not entitled to recover; that there was no employment of Harnickell by defendant; that he negotiated the sale as a necessary condition of earning commissions upon the smelting part of the agreeement, and, so far as he acted beyond his own interest, acted wholly for and in behalf of the vendees, as in order to obtain his commissions from them it was necessary for him by beating down the price to make it for their interest to buy. M. D. Warren for appellant. John M. Bowers for respondent. [MAJORITY — Finch, J.,] Finch, J., reads for reversal and new trial. All concur. Judgment reversed.