"Until further notice we will not appoint any other agent or agents. This arrangement is subject to cancellation upon. (1) month's notice. "SFBM/GP." "Yours very truly, "S. F. B. MORSE, This new arrangement became effective on July 1, 1917, and under it plaintiff continued to render the same character of service as before. Apparently the only change made in the relation between him and the defendants was that he no longer received a stated salary, and in case of a sale he became entitled to a somewhat larger commission. The land in question possessed a location which was pronounced "an ideal shipyard" by Mr. Tynan, the chief local representative of the Bethlehem Shipbuilding Corporation; and plaintiff bent his energies toward putting the land into condition for ready sale. Under his direction plans and surveys for dredging operations were made and reclamation work was pressed forward. At the same time plaintiff kept the attention of the representatives of the Bethlehem Shipbuilding Corporation fastened on the property, and presented detailed information in a form which pictured the peculiar merits of the tract for shipbuilding purposes. While these negotiations were being conducted, a small sale of a neighboring parcel was made in October, 1917, by plaintiff for defendants, for which plaintiff received the commission stipulated in his contract. And it is not without significance that while the Oakland Water Front Company disputes the authority of Mr. Morse to act for it as manager, yet the check given to plaintiff for the amount of his commission was the check of that company. With respect to the tract in question, plaintiff between June, 1917, and April, 1918, had frequent meetings with Harrison S. Robinson, attorney for the Bethlehem Shipbuilding Corporation, and with J. R. Christy, manager of its Alameda plant. Through them, maps, surveys, and other appropriate data prepared under plaintiff's direction were brought to the attention of Joseph J. Tynan, who had general charge of the Bethlehem Shipbuilding Corporation's interests about San Francisco Bay. In consequence of plaintiff's activities both Robinson and Christy became im pressed with the superior advantages of the property; and their opinions, communicated to Tynan, had a potent influence in leading him to recommend the purchase by the government. While plaintiff was constantly urging that the Bethlehem Shipbuilding Corporation should purchase the property for itself, such was not the thought in the minds of those who were speaking for that company. In January, 1918, Christy told plaintiff that the Bethlehem Corporation would probably not buy the tract, but that he wanted to find out about the land for the Fleet Corporation. In February the Bethlehem Corporation and the Oakland Water Front Company arranged to join in a dredging operation to improve the launching facilities in front of their respective lands; and a certain permit of the city council of Alameda being necessary, there was presented to the council, through the Bethlehem Corporation, a letter from A. F. Pillsbury, the district officer of the United States Shipping Board, asking favorable action on the part of the council in the interest of the government's shipbuilding program. Plaintiff attended the sessions of the council and assisted in getting the permit. The dredging contract, made by the Bethlehem Corporation and the Oakland Water Front Company with a dredging company under the supervision of plaintiff, was executed March 18th. In so far as the defendants' tract was concerned, the work contracted for tended to enhance the salability of the land for shipping uses. It is not inconsequential, therefore, that on the very day the dredging contract was signed Mr. Robinson, the attorney for the Bethlehem Shipbuilding Corporation, called at the office of the defendants and asked plaintiff for a price on the property in question, saying that he was not inquiring for the Bethlehem Corporation but for other interests which he himself could not then identify. Plaintiff, in the presence of the assistant secretary of the Oakland Water Front Company, named $1,000,000, and on the following day Morse notified Robinson that the price quoted by plaintiff was approved. This offer was coupled with the condition that the purchaser should assume the expenses for the dredging work already undertaken. Before ratifying the price quoted, Mr. Morse had telephoned to, and received the assent of, Mr. Hammond, a director of both the defendants, who was regarded as having the controlling voice on the question of price, and in his conversation with Hammond, Morse informed him that the sale would be subject to a three per cent commission to plaintiff. Immediately after the conversation with Robinson, Morse instructed plaintiff to make no further quotations to brokers on lands of the Oakland Water Front Company, and a little later Morse informed plaintiff that an offer of $500,000 had been made through Christy to Hammond. This offer plaintiff advised Morse not to accept. At this juncture there was launched on March 21st the portentous spring drive of the German army through the allied line, the impulse of which continuing to April 1st made that Easter season probably the darkest the world has ever seen, and led General Haig to declare that the allies were with their back against a wall. Straightway the United States proclaimed its determination to quicken mightily the transport of troops, and the Emergency Fleet Corporation girded itself for the task of speeding the building of ships. In this posture of affairs the Bethlehem Corporation's agents did not confine themselves to inquiries concerning tract 30, but investigated as well other sites about the bay which might be available for government use. While matters were proceeding in this fashion, plaintiff received, on April 3d, the following letter: "Pacific Improvement Company "This will give you notice that the arrangement which I made with you in letter of June 21st 1917 is terminated. "Hereafter, until further notice, you will be paid three per cent commission on any sales made of The Oakland Water Front Company properties in which this company is interested which originate with you, or for which, in the judgment of the directors, you are responsible. Any offers which come to us direct, or sales which result as a direct offer to us in which the directors feel you have not had an important part, you will not receive a commission, or if you are compensated the amount of the compensation shall rest entirely in the hands of the directors of the company. "S. F. B. M./GP." "Very truly yours, "General Manager. On receipt of this letter plaintiff expressed to Mr. Morse dissatisfaction with its terms, and called to Morse's mind the negotiations already had with the Bethlehem Shipbuilding Corporation, saying that he believed a sale through Robinson and Christy would soon come about. come about. By reason of plaintiff's unwillingness to assent to the changes proposed, he "declined to develop new service under that agreement, as he tells us, and about April 16th he moved from the office of the defendants. He did not, however, abandon the negotiations previously initiated. At various times after leaving the office plaintiff called on Robinson and discussed with him the reclamation work then going on and the subsoil conditions. Thus matters continued without any new developments until early in May, 1918, when J. W. Powell, vice-president and general manager of the Bethlehem Shipbuilding Corporation, visited San Francisco. Powell had been at the Alameda plant of his company about six months previously, at which time Christy had called his attention to this portion of tract 30; and on this occasion in May Powell's visit was in part with a view to informing himself concerning additional shipyard space, which might be acquired through the Emergency Fleet Corporation for the operations of his company. And he told Christy that the government was considering the construction of an immense shipyard, and that he was going to submit data to the officials of the government. In their conversation Christy stated to Powell that tract 30 was probably the best and most available site around the bay, and its merits were discussed together by Powell, Tynan, and Christy. As Mr. Tynan testified, the matter of the purchase of tract 30 "got very serious when there was a possibility of the Emergency Fleet Corporation putting in a shipyard there." This was because such increase of facilities would mean increased work for the Shipbuilding Corporation. Realizing that Robinson had a much more intimate knowledge of the details of previous negotiations, Tynan had Robinson join Powell and himself at the Alameda plant. The substance of Robinson's conference at that time is best told in his own words: "Mr. Powell said, 'I understand you have a site here for a big shipyard.' We then, standing at the end of the wharf, fitting up wharf on the Alameda plant, from the end of that, you could look over the balance of tract 30. He said, 'The Fleet Corporation is pretty nearly determined that they must put themselves in a position to build as speedily as possible a large fleet to transport-for the carrying of troops-that is the critical thing that is coming-and they want to build extensions to existing yards, in order that the building operations may proceed with the greatest possible rapidity, and it has been suggested by Mr. Tynan and Mr. Christy, and I understand by you' said Mr. Powell-that this site here' pointing out over the rest of that tract 30-'is well fitted for the purpose named.' The conversation continued, I cannot remember, of course, all that was said, and then Mr. Powell asked me if I had-we discussed the depths and all of the features, the site, the foundation, the waterfront, whether he could get sixteen slips, building berths in along the front, or adequacy of the remaining space for fitting up wharves; the matter of getting railroad transportation into the yards; where the lines of steam railway were; the matter of street-car transportation for workmen; the matter of getting fuel oil; getting electric power and gas for manufacturing purposes-all of those various features of the site were discussed. And Mr. Powell asked me if I had any written data or formal data of the matter which he could take back with him. I told him that I had in my possession, and had had in my possession, surveys, survey plats, of this tract 30, and a vicinity map, which showed its relation to property and the adjacent waterways, and the adjacent railway facilities, and another map which showed the borings and soundings; that is, depths of water and the depths of hardpan on which a foundation could rest all over that tract; and Mr. Powell asked me if I would get several copies |