[85]*85
cm.mo's,
By his Honor
John at. Sutil.,
j/f / This is a olaim for teotewago for allegad negotiating of a ^V^ease. Plaintiffs aver that they were employed by defendant to lease r*e premises Ho. 1032 Canal Street in the City of Haw Orleans, and did lease the same for a period extending from March 1st 1914 to "February 28th 1919 fat $6000 per annum net): that there is due them by defendant, as compensation, $900 (being the customary commission of 3% on the net amount of the lease).
The answer "denies that plaintiffs were employed to lease said premises; denies that plaintiff did lease the said premises; and denies that there is due and owing to plaintiffs the sum of $900, or any sum Whatever."
XI.
The defense, as thus generally summed up in defendant’s brief, is particularized in the testimony (in fine) of Ur.Baldwin, defendants Secretary, as follows;
Question: Bid you know that the transaction of'making the lease was aotually handled by Danziger t Tessier with Josiah Pearoe * Sons, as testified to by Hr. Pearce?
Answer: Ho; I did not so understand the situation. My understanding was that Judge Crabltes had arranged the lease with Mr. Pearoe, and thattha subsequent drawing up of the lease was simply OLBRICAXi WORK, to put into shape the agreement entered into by Judge Crahitea and Mr. Pearoe, and which the Crabltes Company had authorized by a resolution passed on the 7th of August 1913.
X X X X
Question: Did you■ know that Josiah Pearoe Is Sons had signed this agreement for renewal of the lease?
Answer: Ho, I did not.
Question: In fact you did not Snow of the existence of the documentuntil it was produced in court; did you?
Answer: I dont think I did. (All underscoring ours)
III.
The defense ia still further particularized, and even amplified (without objection) by the testimony in Chief of Judge Crabltes (here paragraphed and slightly abbreviated) as follows;
[86]*86X reaohei Maw Orisana luring the early layB of Juna 1913, Intending to sell my holdings (1= e. the holdings of the Crahitas Company). The Brand Theatre, about which the present litigation has arisen, was under lease to Josiah Pearoe # Sons for a term of years expiring in February 1914.
Previous to my arrival I had understood that Mr Pearoe desired to tats up the question of renewal. I gtt in touoh with Pearoe, and learned from him that he was willing to trade with me but desired a RKDITCTIO” in rent. Knowing from this that I oould have him .for a tenant, if and when I desired, provided we oould agree on terms, I felt very muph reassured.
Returning (now) to the date of my arrival: I had learned that Danzlger & Tassier had been commissioned by the Wolf Estate to take up negotiations with me looking towards the purchase of my holdings.
My relations with all the members of that firm were, and are still, of a pleasant character; (and) when I learned that Mr. Danzlger oould do nothing with the Wolfs (as their representative) X put this property in the hands of Danzlger It Tessler to find a purohaser for me.
The best means of selling the property presented a series of diffloult'problems!.I was not ..desirous of leasing to Pearoe, because I was fearful'that a long lease to him might hamper me in getting a sale. On the othep hand I did not want to have Pearoe get away from me; and I spoke freely and unreservedly to Mr. Danzlger, the only member of the firm with whom I had these general relations.
¿s time drifted along, somewhere in the middle of July, or August, Pearoe grew restless; he wanteT"to oome 'to terms. I held him off as long as I oould, telling him there was no real hurry. Finally he asked me several times to bring the matter to a head, and .1 then told Mr. Danzlger that this lease to Pearoe would have to oome to a head in some form or antther. (MOTS; The data of the final offer by Pearoe, August 1st; its acceptance by Danzlger & Tessier on August 6th; and the defendant's approval thereof on August 7th; show that JURY not August, was the oorreot date.)
It was (then) agreed between Mr. Danzlger and me. in order to faoilitate the sale of the property, $o have (put)-fú»~ in control of the property, (where) his relations with Pearoe would be auohthathe oould keep the Pearoe matter in abeyance. wlthoutTSeinSporoed to givo Pearoe a definite OYla tit A W» _ ^
Finally, Mr. Danzlger advised me sometime in the latter part of September (August?) that the PQgDRMY ESTATE had' ripened into a genuine, bona fide prospeotjj-^ofbrfliing ike property to them.(MOTE; the reporter has actually written September, but that is manifestly an error. The month meant was i-UMi ATJBUST for on August 26th the POkorny deal fell through.)
He told me that the Pokornys wanted the property exclusively for investment purposes; that therefore it would be wise to ODOSE with Pearoe, in order that he (Danzlger) oould offer Pokorny a bona fide investment upoanoase's of the rental. Dater on he told me that Meyer Elsemann, representing the Pokornys, had aotually agreed to buy at #126,000 (for all the property).
[87]*87With the matter In that shape, and in order to oinoh the PokorriyTrade, w|»TSh Danziger (Aoting upon infomation received from Sisemannlconaldered closed, I told him to go ahead and olose thla deal with Pearoe.
The Pokorny deal fell through, for reasons foreign to the present litigation; hut this lease having "been signed (cloaedT) upon the hypothesis that the Pokomy trade would go through, we were hound to Pearoe, although the motive for our being hound (the Pokomy trade) had fallen.
Ihe property wasaotually sold only six months later, through another real estate agent, to whom we paid his commission in full for the sale.
In other words, I considered, and I AH SATISFIED that Hr. niiti Darnsiger considered, that thTs-Tease was part and parcel of the sale of the property; that the lease was neees8ary to make the sale; and that otherwise I (having had all the preliminary conversations with Hr. Pearoe) would have signed the lease myself, hut allowed Danilger to OOHPIiBTS it (only) as being part and parcel of the sale.
Question: Was there any agreement between you and Hr. Danziger as to his being paid a commission for negotiating this lease!
Answer: There was no specific arrangement of any kind. It was along these-Tinea: (he said) "Let mé~ha¿aie' Pearoe; I am leasing him some other property, and we are in daily touoh; I will have no trouble in avoiding a definite answer." And it was mj understanding that as Hr. Danziger's commission on the saTe, if it went through, would be around (above ) $3000, his work on the lease would not be charged against the Crabltes Company.
Quastlon:That was in the event he made a sale, there would be no commission charged for the lease? (Sic, as punctuated by the reporter.)
Answer: Understand me. Hr. Danziger did not say (so) to me in ee many words. (Mr. Danziger not being present, and not apt to testify in thiB case, it is necessary that I should be perfectly fair to him.) He at no time said to me; "I will make you no charge for this lease", but it was mj unde rs tandlng and the whole basis of our conversation was, that the whole thing would go in globo, the. commission on the sale being compensation for the whole thing; Danziger knowing that I oould have closed , with Pearoe if I wanted to. And Danzlger, kngwjjTg bIbo, /érIW that I kndw that the production of the"yMjcMd" i3 one (yu< main stocks in trade of a real estate man; and that I had produced the prospective tenant and waB in a position to olose with him if -I wanted. (All underscoring ours)
XV.
These ocourences took place in the summer of 1913; and Judge Crabltes gave his testimony in September 1916.
His oroBs-exaiflnation was long. It wrought no change in the substance of that given in chief; but from that souroe we gather the following additional facts, which we think pertinent:
[88]*88Question; Have you the original lease?
Answer- Personally I have not. Since I left New Orleans, Mr. Baldwin has been my alter ego: I have none of my own papers on any matter: I have no papers at all.
Cb tí ¿3 ■P « -r-•HE© <D © rtí *d <d © -P « tí Í-4 tí rd tí tí tí tí *.<3 * .tí © -P CO P -P © tí *H tí H © .tí >»-P tí 0 -P H 03 tí © O [=5 -P -P © © tí tí .tí -Prtí *P tí -P 02 -P H © 0«H ¿3 M O ,£} *H -P O p tí Ot 43 60 03 tí tí tí O © O © © tí ta H O tí-P tí tí tí h O «H H ■P © -P C3 © tí feo m m P H tJ H <rl •H-P N H S,tí tí tí o g -p 0*600 CO o tí f\ o tí © -H © O •d >d • ¿i © tí tí U -H © aSgoítí , -P -P o tí ©.tí -p tí o fn -p © © tu © *h ca ítí o •d fc ^ -p — tí o s © £>>+» »d Ítí m r-l a © tí-P
XXXXXXXXXXX ©H-P gPc+d-tóaHPOStí'tí* 'd-Cfcj tí-P ® © H* && H o d-o © d-oh^ra . .a tí*o o o o p tí © tít© c+!VH po 3tío*tí*offl ef a >d © o ® p H o^bBh^íj1 Hd-Ocfc+p. p *4 tí*^ H« cMflpi • ® © *4 <| tí* cf© «d eí § Sil ..>-P Jh sJWi H © © © ^o-P £ Pft tí ©tío tí|OH|i o © tí .tí U ; 3 í 3 Cbbd
Question; You are quite positivo that you aid not prior to that date fthe data of the formal lease. August 80th) instruct Mr. Danziger to go ahead and mate the lease with Pierce?
Answer; Undoubtedly prior to that date; for the reason that he (Danziger) told me, "The Pokornys want to buy, and our only chance of selling with them, is on an investment basis; X had been reluctant 'to close with Pearce, whom I had under my control to the extent that my (our) personal relations were good; and there was also the desire on my part of making the lease for a larger figure than the actual amount 5iF~was to pay.~ giving htr. Pearce a oasF'reSate ■' But Danziger advised that the Pokornys were interested in the dash consideration for the lease, and nothing else; and that the lease should be made for the ectual consideration (to be) paid, and no more. And the trade was THRU whipped into shape and CIOSED, Danziger believing, añJ so advising m®, that it was neoessary to cinch the Pokorny transaction.
mmim
Question; You authorized Mr. Danziger to make the lease with Pearce for this period of time, and it was (is) .just simply that you don't think you owe him any commission?
Answer; That is it; My understanding was (that) Mr. Danziger was to consTder himself compensated by the $3600 or $3600, fee in putting through this sale; $3600 fees, particularly at that time of the year, were not things to be sneezed at.
Question: But you said you didn't make the assertion that Danziger ever so understood?
Answer; lío, I don't say that. I mean Mr Danziger had never specifically told mo that there would be no charge made. But he said "let me handle this thing; this goes in one; this is part and paroel of handling the trade. I will handle the trade for you, and there will be no trouble about the lease*" But he nover, in so many words, told me that he would not charge a commission. But that was my understanding, and I [89]*89BELIEVE. if ha wars present, it would he his; or had he not see'n the trade made hy tuiother real estate man, and the loss of his entire commission. I DOH'T THIMK there would ever~have teen a demand on as for this present sum of $900.
irirxririr
Question: Were you aware of the faot that Josiah Pearoe it Sons, #### under date of July 29th 1913, made a proposition to rent these premises through Danziger h Tessier at $6000 a year; and did you ever see the card which I now show you, signed hy Josiah Pearoe & Sons?
Answer: I knew the faot that Jo'siah Pearoe k Sons, a$ (put in touch with Danziger hy me, for reasons heretofore given), had made an offer upon the property ééi of $5000 per annum; and I also knew that Danziger was told not to olose with the*, and not to refuse; hut to hold the matter in eheyanoe, for tha Seasons I have pointed out. x x x x x The date of this document, July 29th, and the subsequent date of the lease (August 30th ), show that the matter was not pressed.
Question: Did you not have presented to you hy Mr. Danziger this proposition, dated July 29th, shortly after its exeoution?
Answer: I had knowledge of the issuance of that dooument practically contemporaneously with ltB issuance; hut I donSt recall having actually read it, But I knew from Danziger that Pearoe had made an offer of $5000. As a matter of faot, I had reported to Danziger that, whereas the property was leaaed at $7500, and I was fearful that Pearoe might not offer me more than #4000. I had seen enough of Pearoe, in my interviews with him to know that I could trade with him ARCUHD FIVE THOUSAND, if I wanted to.
Question: Did you not forthwith instruct Danziger to SScp'iWthe $5000 Proposition?
Answer: X forthwith instructed Danziger to do absolutely nothing whioh would bring things to a heaJ;Tut to use his own judgment as to the best way of keeping Pearoe on tha string, without binding us one way or the other.
Question; Then why did Pearoe & Sons two days later, on August 1st, again submit a proposition; and this time for $6000, as shown from the baok of this letter (card)?
Answer: £ know nothing of thedetails between Mr. Danziger and Mr.- Pearoe: my mandate to lianziger having-Faon to keep in touch with Pearce; not to let him get away, hut not to olose with him on any proposition.
Question: Did you not under date of, or prior to, August 6th iál¡5, instruct Danziger to aooept the Pearce proposition?
Answer: I HAVE HO RECOLLECTIQH of ever Instructing Danziger at any-iate to aoquaint Mr. Pearoe with any decision on my part. (MOTE; Baldwin's testimony above quoted, shows that on August 7th the defendant formally authorized a lease to Pearoe on the same terms as those accepted hy Danziger & Tessier on August 6th, as follows:)
Question: I show you the reverse of this document, and ask you if there is not a lead penoil offer there, from Josiah Pearoe & Bons, of $6000; and if that is not dated August 1st; and if there is not an acoeptanoe
thereof hy Danziger & Tessier, dated August 6th.
[90]*90Answefs^Thare is auoh a condition of affairs tlfere.
Question; How do you reoonoile that with your statement that you were for a policy of delay, and did not want Mr. Pearce to he told one thing or the other?
Answer; X am HO® IH A POSITIOH TO ACCOUST TOR THIS TEIHS beyond what I toll-you. liy sole-cTesire in ike premises' was at all times to hold Pearoe in shape. MS BIB HOT ✓ KNOW how the Pearoe lease was to be drawn up. T¿3¡. QuibTIOH ATOOSE ajase whether Pearce was not to make out the lease for a BARBER AMOUHI and rece Its a rebate in cash from ua, to increase the purchasing power (selling value?) of the property. You see the BATE of the (formal) lease was actually considerably later than that. (HOTS; As heretofore said, the lease had been formally authorised by defendant as far back as August ?th, 1. a. the day after its acceptance by Banziger k Tessiar.)
fuestlon! Was not the lease finally eraoutaa on August Oth, under your written instructions of August 28th, for the same conslderatioh as mentioned in this document (on the reverse) of $6000 per annum?
Answer: (Yes,) SIX THDÜBAHB per annuo; that is the figure mentioned here.
Question: How did not Banziger k Tessler^fpj.Baniiger-whoever was handling this proposition-geOfnaYTTo agree to spend not less than $8000 in ImorovemantBon the premise» during the term ofthe leas??
Answer: Such an agreement is incorporated in the lea»». 'I 4on't know the exact amount; but it is around that.
xxxxxxxxxx
Question; You have nothing outside of your recollection, to substantiate your idea that the firm of Banziger k Tessier should do the work in oonnection with thfjleaae for nothing beyond the mere hope of earning the. commission on the sale?
Answer: I have stated all the facts to you; (but) I have (also) this one fact, (You opened theídoor-); That Walter Banziger was desperately anxious to make money; that hi» subsequent career shows that a contingent fee of $3600, and more, meant a great deal to him. And he knew perfectly well that I could never bind myself for a fee of $900, whan (as he knew) my tenure of the property waa going to oease, as the result of my general financial oonditlon, before theifc then existing lease expired. Mr. Banziger knew that .1 had absolutely no intereat as a landlord in that property after the 1st of February-T9T4” that my sole desire was to put that property in suoh shape, during my stay in Hew Orleans, as would facilitate a sale thereof. (All underscoring ours) —
V.
From the re-dlreot examination of the wltne»» we extraot the following, also pertinent we think, to wit;
Question; Prior to these negotiations for a renewal of this lease, had you had business dealings with Pearoe?
Answer; Yes, Pearoe had been my tenant for aix year», x x x When I reached Hew Orleans Pearoe oalled upon me, and it was clear from our interview that he was willing to trade. I should add that I was surprised that he waa willing to trade upon AS IIBERAh A BASIS aa what his preliminary [91]*91conversation with ms developed, x x x I was (therefore) very much «no our aged. and did not aotnally turn hi* over in any form whatever to Danziger until none months or ao later, when the developments assumed a fora where I thought It was fair for Danziger to handle the lease se that he might not he hampered In his negotiations (for a sale). z x z z In this matter the Crahltes Company found the tenant; and Danziger fc Tasaler, with all due respeot to them, their roll was to dangle him along and send him up when the Crahltes Company wanted him.
zxzxxzzzxz
On Saturday July 19th, Judge Crahltes wrote Danziger fts follows, •Wie-the letter being on Club stationery, all in his own handwriting (and of course reserving no copy), to wit;
My dear Walter; I am going out of town to-morrow (Sunday) for the day, and may get baok too late to see you Monday morning.
I have given our conversation of this evening considerable thought, and I am confident we can afford to risk a guarantee of five years at $7500 net, provided we get the prioe.
On a 6 l/2 “0 basis it means $115000, and on a 7fj basis $107000, both will above what we can get with our March expiration soaring off nurohasera.
I am prepared to TAKE MY CHANCES ON THE RENEWAL, and can afford to pooket a loss' and stiiTw'in.
Besides, if we can get an offer based on a long lease, it means a batter prioe, and this better price will force THE R0SENTHA1S to trade; as far as they are concerned we may decide to stand pat as to expiration. Ho injustice [92]*92ia done the purchaser, because etc (the rest being irrelevant).
P. 3. Why not write your CHICAGO IJSr3'HTCTI0H at once, laying the facts before it and asking a reply by wire if interested.
The "Chicago Institution" above mentioned had referenos to "some trust funds belonging to a University; the University people having stated, so Danziger told me (Crabites), that they would be interested in Mew Orleans real estate on a 6$ basis. This matter never developed at all."
The "Rosenthals” or may not, have been the same aa the "Wolf Estate" mentioned in the testimony of Judge Crabites; but it is sure they are not(at lease there Is no evidence to show, or even suggest, that they are) in any way oonneoted with the "Pokorny Estate." De non apparentibus at non exlstantlbus sadem est ratio. (All underscoring ours)
HI.
On "Monday" Judge Crabites wrote Danziger as follows, the note being oh a sheet of blank paper apparently detaohed from a soratoh pad, and suoh as one person calling on another and finding him out, would dash off hurriedly on any handy Borap of paper and leave upon his desk, to wit;
Walter; While you are figuring with Pearoe. (who by the way is in town) what do you think of the advisability of wiring CHICAGO a night letter enquiring as to whether or not they are interested.
This note bears no other date than "Monday"; whioh oould not have been later than August 4th, since the negotiations with Pearoe were finally olosed on Wednesday August 6th; nor earlier than July 21st, the Monday mentioned in the letter of July 19th; whioh latter was probably the actual data, judging by the tenor of the of the note Itself.
VIII.
On Tuesday July £9th, Pearoe addressed to Dansiger * Tessler an offer to lease the property five years at $6000 nst per {Sit and expand "over $8000 in improvements" during the leass.
[93]*93On Prlday August 1st, Pearoe lacrea»ad his offer to ‡6000 per year, leee an allowance of one aonth'a rent wjiile the improvements were helog made»
On Wednesday August 6th, Danziger A Tessler aooepted the offer laet mentioned.
On Thursday August 7th, the Crahites Company formally authorised a lease to Pearce upon the same terms as those secured hy Danziger A Tessler.
XX.
On Tuesday August 26th, Meyer Eiaemann (mentioned in the testimony of Judge Crahites) wrote Danziger, then at Hot Springs, Tirginia, as follows fand part of the res gestae.):
"I received your telegram this A. M. in response to the one from Crahites. Unfortunately, the deal has gone to pieces. Mr Crahites refused to give Pokomy until Monday September 1st, in which to close the deal; and result was that it was# imposeihle to bring them to a compromise, although 1 made strenuous effortB to have the date fixed for Wednesday August 27th ( The rest is irrelevant)"
On Thursday August 28th, Judge Crahites wrote Danziger fat Hot Springs) as follows;
"The Pokomy trade has fallen thorugh for reasons outlined > in the telegram sent you. x x x I have instructed your office . ' N / to draw up the Pearce lease, and generally gete matters into y Ütté proper shape for a continuance of our campaign fthe rest < ie irrlevant)
X.
On Saturday August 50th, the formal lease between Pearoe and the Crahites Company, and the rent notes to accompany the same, were duly drawn up and signed.
On the sami day, Danziger & Tessier entered on their books a charge against the Crabites Company for the compensation herein claimed.
On Deoemher 6th, a deal for the sale of the property [94]*94to ona Sr800 (an outsider) was closed through another real estate agent.
On Daoember 6th, Danziger & Tessier sent their bill for services as herein olaimed.
On Deoember 22, the Crabites Company acknowledged receipt of the bill, with a statement that it had been forwarded, for information, to Judge Crabites then at Cairo, Egypt.
On Daoember 23rd, Walter Danziger^aboeonded; ana has not been heard from sinoe.
Prom the testimony of Mr. Baldwin, Secretary of the defendant company, we further extract the following;
"x x x x About the month of Ootober 1913, I discussed with Mr. Danziger the plan of leaving him out of the proposition, so as to give another real estate man, who had approaohed me, an opportunity to see if a sale could be made. To this Mr. Danziger agreed; and after the other real estate man (Mr. Perrin) had failed to make a sale of the property, I then took up again with Mr. Danziger the question of selling the property. He failed to produoe a buyer; and in November 1912, Mr. ######## Onorato took up with me the question of selling it; and I then made the agreement with Mr. Danziger that in case of a sale by Onorato, he (Danziger) would not participate in the commission. Mr. Onorato made the sale about the 5tK of December lll3; that is, the tíéé deal was closed at that time, but the act of sale was not passed until about the 14th of January 1914. x x x."
XII.
We mention the faot that a oharge was entered on the books of Danziger & Tassier when the formal lease was signed (August 30TH) only because it so appears from the testimony; and the oharge was doubtless made in due course of business. But plaintiffs can take nothing from this as showing the then state of mind of Danziger; sinoe at that time Danziger was not in the City, but at Hoi Springs, Virginia.
We likewise attach little weight to the statements of Mr. Tessier and. his son, that they had no knowledge of any agreement to make no charge for the lease; sinoe such an agreement might have been made and they not khow It;- and Danziger, as h~ad of the [95]*95firm had ample authority to make auoh a oontraot (under the oirounstanoes) if in fact he did so.
Nor do we attach any weight to the opinion of Mr. Tesaier, that it would not have teen "ethical" to make no charge for the lease. We have lately heard much of the Bthlos of some new-horn professions, the burden whereof being always (as it reaches usl that it would be "unethical" not to charge for this or that, or to charge less than so much or s- much, ffihtftschol v*" .tVJcs does not appeal to us, making a somewhat-too-lit/eral application of the aphorisÜR, "Virtue brings its own reward"
We mention the fact that a bill for services was rendered the defendant in December 6th (the day after the closing of the deal put through by Onarato) merely to negative any too-rapidly drawn conclusion that Danziger intended at no time to make such a charge under any circumstances. Por Danziger was in the city at that time, and must have had (did have) knowledge that the bill was sent.
And we mention Judge Crabites1 reference to Danziger's financial embarresment, not because it in legal evidence (the witness' own "you opened that door", being expressive of his own realization of that fact), but because it shows that the witness was himself sub-oonsoiously influenced by subsequent events in his then appreciation of Danaiger's intentions.
■XIII.
Now it needs but a caaaal glance over the evidence we have transcribed, to satisfy one that the connection of Danziger with the lease to Pearce, was not merely OLBKICAD.
But the evidence goes farther; it shows thet the roll of to Danziger was not merely^ COMPUSTB what Judge Crabites had already agreed upon with Pearce.
Thus, When Judge Crabites reached New Orleans he found Pearoe, who then paid $7600 net per annum, willing to renew but desirous of a PJkDUOTION in rent. He anticipated a claim for reduction to $4000; and was agreeably surprised to find that he could close [96]*96at any tima with Poaroa "on aa libara! a basis" aa ABOUND MTS TH0U3AHD.
Juaga Orabitaa then "retired from the aoana" putting Danxiger forward to do the "backing end filling" with pearoe; and thua matter» stood until July £9th, on whioh day Pearce maa» an offer of $5000 rent, ADD "over $8000 to be expanded in Improvements."
Judge Orabitaa "knew nothing of the detalla between Mr. Damsiger and Mr. Pearoe," but on August 1st Pearoe inoreaaed hia offer to $6000 rent (and $8000 improvements) lesa however OHB MOUTH'S HKHI ($500) whilst the Improvements were being made. Whioh offer, on the ve: faae, shows all the ear-marks of a proposition submitted aa the result of serious negotiation#.
Deduot $600 from $8000, leaving $7600; and divide by five. We then have, in improvements, the equivalent of $1500 per year added to the tenant's oharge; and $6000 plus $1500 make $7500 per year, being the same amount as he was than paying. So that Pearoe did not secure a REDUCTION in rent under the new lease. On contrary/ aa the remH&tur# of rent was to be "whilst the improvements were being uade,'' it is oler" that the expenditure of $8000 was to be made in a lump sum; and as the tenant doubtless wished to enjoy those improvements, it is equally clear that this expenditure would he made at or before the commencement of the new lease; so that, interest on the advanoe considered, Pearoe would aotually pay, direotly and indireotly, K0R3 RBHn? under his new lease than under the existing one.
It is true however, that tha^Het Cash to the landlord was $1500 loss than under the existing lease; but nevertheless It was $1000 more than the "liberal basis” on whioh Judge Crabites could have closed "if he wanted to". And the landlord, whose property the improvements were to become, certainly derived sows benefit from them; otherwise why stipulate for themT
It is also true that Judge Crabites oould himself have oonduo-ted the negotiations wtth Pearce, had he chosen to do so; but then "Pearce would have ####fforoad me (Orabitaa), an owner, to to answer:" that is to say " somewhere in the middle of July", when Pearoe beoamo insistent, and whan "Itold Danaiger that this lease [97]*97to Pearoe would have to o ox to a head In some form or another"! and probably on "as liberal a hula" as, ABOUHB PITS TH0Ü3UD. at whloh "I oould trade with him If I wanted to".
Be that aa It may, the fact remains that Judge Crabltea chose not to oonduot the negotiations himself, hut to use Banzlger; and render valuable servloe, not only by standing the brunt of the "backing and filling", but alBO by negotiating a lease aotually more favorable to the landlord than the latter had any reason to expeot, or even hoped for.
ZI7.
As we have stated, the formal defense was, that Banzlger had not been employed and had rendered no real servloe; but this was amplified by testimony received without objection; so that the defense now Is (substantially), that even If Banzlger did render some servloe, it was only in connection with, and as part of, his met ix* efforts to effect a sale; and that all servloes were to be compensated only by the commission on the sale, should a sale be effected by him, and not otherwise*
This is In effect a special defense, and the burden of proof is on defendant. In a very similar case (Barker vs Jung, 10 Orleans Appeals 280) we held that one who claims that a broker has waived his commission for services rendered, must prove it. In that case a broker, named Preret, had been employed by the defendant to sell certain lots of ground, Preret in turn employed plaintiff; and between them they interested one Cotton, but oould not effeot a sale at once. Shortly afterwards the defendant himself sold the lots to Cotton, and then refused to pay a commission to plaintiff, who claimed the whole of it with the consent of Preret. We said inter alia (p. 283)
"It is contended by Jung that Preret renounced his right to a commission, and that therefore the plaintiff is not entitled to any. So one is presumed to give. The burden of ptoof was upon defendant, and he has not met it (C. C. 2202). A fair interpretation of Preret's testimony is, that he agreed to waive any commission [98]*98Massif In order to protect Barker in Mb right to a ooamission. As Ereret disclaims any right to the commission Barker is entitled to it."
And if we were to take the testimony of Judge CraMtes, as defendant would have us do, to mean that Danziger, whatever the nature of his services in effecting the lease, agreed finíthe hope of effecting a sale) to make no charge therefor under any circumstances : the#,however unimpeachable the witness himself, yet his testimony is not of a nature to make proof of any such claim. For the witness swears to no such faot; he swears (at most) that such was his (the witness') understanding, and to his own belief, and being satslfled. that it was also Danziger's; but he states categorically that Danziger made no suoh statement as to his (Danziger's) understanding of the matter. And there are also many things the witness cannot recollect, cannot recall, is not clear about, and cannot account for; so that on the whole, his testimony lacks that oertalnty required in the proofs of one who parries the burden of proof.
But we believe it a fair deduction from Judge CraMtes testimony to say that the understanding appears to have extended no further (on the part of Danziger, at least) than, that there should be no additional oharge for negotiating the lease, should Danziger effeot a sale of the property: and that the commission on the sale (if effected by him) should be full compensation for all his services; and hence "there never would have been a demand on ua (the defendant)" for a ooamission on the lease, had not Dansiger seen the sale made by another broker and the consequent loss of that commission to him.
That appears to have been the deduotlon drawn from the testimony in chief of Judge Crabltes by the counsel who represented the defendant when his testimony was taken; who, after hearing that testimony, and before the oross examination, put to the witness a question (heretofore quoted) _in the form of an assertion that "in the event he (Danziger) made a sale, there would be ne commission charged for the lease."
[99]*99And auoh also appears to have toen the daduotIon drawn from that testimony by the counsel who cross-examined him, as shown "by his weoowi. question (as quoted atore). To which Judge Crabltes himself at ones lent his assent, with this addition, that the sale to Pokorny appeared to hare ACTUALLY BRFJf MAPS when his understand lug with Banziger was reached; an‡ error of faot on his part, as we will presently show.
Zt Is true that on his 15th, cross question (as quoted), the last but one of the cross examination, the laBt counsel attributes to Judge Crabltes "an Idea that Banziger k Teaaier should do this work for nothing beyond the mere hbne of earning the nnmm-i anion on the sale." But to this the judge answered only, "X hare stated all the facts to you, " and then adds the remar’: about PanzIgor's "anxiety to make money"; a perfeotly oorreot and oonolentlous reply, but meaning only, that the counsel might draw his own eonoluslon, and that the witness then had (partly in the light of subsequent exenta) some suoh Idea. But this is very far from an assertion that Banziger had exactly that same Idea; an assertion whioh Judge Crabltes had repeatedly refused to make.
ZT.
This oase, however, does not rest entirely on the mere lack of any positive assertion by Judge Erabitas that there was an understanding such as defendant now contends for. The Judge's evident (and expressed) wish to be perfeotly fair to the absent Banziger, may perhaps have led him unoonsoionsly into the opposite sxtrsms of being somewhatAwWalr to his own interests; and we would fool that wejcourselvos were not doing him full justice, were wo not to point out What ws believe to be the CRUX of the whole matter; and to whioh, under other oiroumstanoes, we would simply have pplnted at onoe, and gone no farther.
It is of course unnecessary to express the high esteem in whioh we (as well as all who know him) hold the distinguished gentleman. We aooept without reserve, the testimony of Judge Crabltes as being the truth, as he saw and felt it to be when he gavs his testimony. But the most truthful witness (in faot the enlv truthful withe aaj is he whose testimony pictures faithfully [100]*100the state of his mind as it then la: and the frailty of human Memory does therefore often lead the most sincere of witnesses into error.
Judge Orabites testified more than three years after the oocurenaes themselves, ana without papers of any kinit^in his possession or copies of his own hastily written letters; letters of whioh the defendant itself had no copies, or even knowledge. It was but natural therefore that he should have mistaken the aotual course of events; whioh was as follows;
As early as July 19th, Judge Orabites (as his letter of that date shows) had determined to close the lease with Pearce; as late fat least) as July Slat fas show by the letter of July 19th and note dated Monday) he had in mind but two possible purchasers* the Rosenthals and the Ohjoago Institution: on August 6th the deal with Pearce was closed; Danziger MltiiStt advised him "some time in the latter uart of September," meaning August, that the Pokorny Estate had developed into a genuine prospect; the Pokorny deal fell through on Monday August 25th; and the formal lease to t^Saroe was signed on Saturday August 00th.
So that the lease to Pearce was oertainly determined upon, even and probably^oloaad, #########befpre the Pokornys had even appeared on the scene; and Judge Orabites has simply confused, with the matter of negotiating with Pearce. his own discussions with Danziger fpending the negotiations with Pokorny) relative to, whether the formal lease should,## or should not, be made out for a larger nominal rent than the aotual cash rental to be paid by the lessee; ais is shown by his answers to the 3rd and 12th oroas-questiona fas quoted above).
Accordingly weíthinfc the able and learned Distriot Judge has, in on this ocoaalon, errad tíé- his appreciation of the evidence; «naihenco we are constrained to disagree with his conclusions.
The Judgment appealed from is therefore reversed; and it is now ordered that there be Judgment in favor of the plaintiff, Danziger [101]*101* leaalsr, In liquidation, and against tit* defendant, Crabitea '■> Company, limited, for the full sum of Hina hundred Dollars ($900.), with legal interest from judicial demand and all costs of both suits.
New Orleans La, January 1920