This is a writ of error to the Circuit Court of the United States, held by the district judge for the eastern district of Louisiana.
The suit was brought by Woodlief, a broker in the city of New Orleans, against the defendant, to recover the sum of two thousand six hundred dollars, as a commission for negotiating the sale of a plantation and slaves.
The petition sets out that on the 16th November, 1855, the defendant employed the plaintiff to procure a purchaser for his sugar plantation, situate on the Bayou La Fourche, in the State of Louisiana, and seventy slaves, for the price of $130,000, of which $20,000 was to be paid in cash, and the remainder in five equal annual instalments, with interest. That the plaintiff soon thereafter found a purchaser, namely, George M. Long, of the parish of Carroll, State of Louisiana; and on the 20th November, said Long, with the plaintiff, went to the residence of the defendant, examined the property, and concluded an agreement of purchase according to the terms stated.
The facts set forth in the petition were denied by the defendant, and the cause went down for trial before the court, a jury having been waived, when a judgment was rendered for the plaintiff, for the amount claimed.
The case comes up on a writ of error to this court upon a statement of facts by the judge. The issue was tried in the court below, and the judgment rendered on the 24th June, 1856. A motion for a new trial was heard, and denied on the 9th of October following. The writ of error was then prayed for and allowed, and the statement of facts drawn up and ordered to be filed, nunc pro tunc, as of the 24th June, 1856, the day the cause was first tried before the court.
An objection was made on the argument, that this statement of facts could not be noticed, it having been made up after the term in which the cause was tried, and as it did not appear that the court was requested to draw it up at the time of the trial. We are of opinion that, as the judge has drawn up and filed the statement as of the day of the trial, it is but reasonable to presume that he had been so requested at the trial by the counsel for the defendant. We agree that the request must be made at this time, in order to enable the court to notice it in error; but the statement may be drawn up afterwards, as shall be convenient for the judge. This is the settled practice in courts where the proceedings are according to the common law. The bill of exceptions may be settled after, though the exceptions must be taken at the trial.
As to the merits, we are of opinion that there was error in the decision of the court below.
The terms of the sale, as given by the vendor to the plaintiff, the broker, were simple and specific-the price $130,000, $20,000 in cash, and the remainder in five equal annual payments. Long, the purchaser, agreed to these terms, as averred in the petition, and not questioned in the case; and if he had offered and was in a condition to consummate the agreement according to its terms, no doubt the commission would have been earned, and the recovery below right. But when the parties proceeded to the execution of the contract of sale, a change was proposed by Long, the vendee, which, for aught that appears upon the facts or in the finding of the judge, was never assented to by the defendant. The change was substantial, and called for a new and distinct agreement before the vendor could be bound. The wife of Long was interposed as the purchaser, the husband being a person of no means or credit. Her means, it appears, consisted of notes given to her by Dr. Bard, for a plantation which she had sold to him; and the greater part of the statement of facts is made up of various negotiations with third parties, by the plaintiff and Long, with a view to turn these notes for the benefit of the defendant, so as to apply them towards payment of the $130,000, the purchase-money. This was to be brought about by substituting them in the place of notes which the defendant had given to one Thibodaux, from whom he had purchased his plantation. Thibodaux was willing to receive the notes of Dr. Bard, in lieu of the defendant's, if the substitution could be legally made, and he could retain a first mortgage on the plantation and slaves as a security. Whether this security could be given, or was agreed to be given, nowhere appears. Twenty thousand dollars of these notes of the defendant were, in some way, under the control of a commercial firm, who were endorsers upon them. A difficulty existed in making a substitution for these. No satisfactory arrangement was made in respect to them, and none at all as concerned the sum of $20,000, which was to be paid to the defendant in cash.