Citations
- 214 F.2d 24
Full opinion text
ORR, Circuit Judge.
In June, 1949, appellant The Login Corporation, an American import-export firm, engaged the brokerage services of appellee Somekh, a citizen and resident of Tel Aviv, Israel, for the purpose of effecting a sale of sesame seed between appellant as seller and Palestine Oil Crushers Pool, Ltd., hereafter Oil Crushers, as buyer. After considerable negotiation, the parties, on or about July 14, 1949, entered into a contract whereby appellant agreed to deliver 2,000 long tons of sesame seed to Oil Crushers at Haifa, Israel, at $202 per long ton, or a total purchase price of $404,000. The sale was conditioned upon the buyer’s establishment of a satisfactory letter of credit. It was understood that appellant would pay appellee a commission of one per cent of the gross contract price, or $4,040, for his services in connection with the sale.
On August 3, 1949, appellant received a letter of credit from Oil Crushers which it considered unsatisfactory. After appropriate amendments were made, appellant accepted the letter of credit. By its terms appellant was required to put up a deposit of three per cent of the purchase price as security for its faithful performance of the contract. Appellant made arrangements for a partial shipment of 800 tons of sesame seed and on September 2, 1949, put up a proportionate deposit of $4,848 as security. The remaining amount of the required security was deposited on September 12, 1949.
Storms, floods and crop failures caused an acute shortage of sesame seed and appellant was able to obtain and ship but 240 tons. This occurred early in September, 1949. Payment for the seed actually shipped was obtained by partially negotiating the letter of credit. Thereafter, on October 12, 1949, appellant paid appellee $456.40 representing his one per cent commission on the partial shipment.
Appellant encountered further difficulties in procuring sesame seed. As a result thereof, on November 14, 1949, appellant and Oil Crushers, by mutual agreement, canceled the contract of sale. Under the terms of the cancellation agreement, Oil Crushers obtained a release of its letter of credit and retained $2,500 of the good faith deposit as compensation for costs and expenses incurred in connection with the transaction.
Appellee Somekh demanded one per cent of the purchase price on the balance of the undelivered sesame seed as commission due him, claiming that he had fully performed his services as a broker. Appellant refused payment, contending that appellee was entitled to a commission on the seed actually shipped and paid for by negotiation of the letter of credit and not otherwise. These proceedings were resorted to by appellee in order to enforce his claim. The trial court sustained his version of the contract. It found that appellee had fully performed and had earned a commission on the full amount of the purchase price when he found a ready, able and willing buyer and had furnished a satisfactory letter of credit. Appellant concedes that the trial court’s conclusion would be correct absent an express agreement to the contrary, and argues that an express agreement t