192 Mass. 233 | Mass. | 1906
We are of opinion that the exceptions to the
The testimony of the plaintiff and the defendant as to what took place at the interview between them on or about January 2, 1899, was conflicting. But whichever of the two stories was believed, the plaintiff’s authority to get a tenant for the property was revoked in fact at that time (if it had not been re-yoked before by the defendant’s instructions as to the taking down of the plaintiff’s sign), and the jury should have been so instructed.
The plaintiff’s story is that on or about December 24, 1898, Gould and Polio made a definite offer to take „a lease on the terms of the Mann lease, which he, the plaintiff, reported to the defendant’s agent Gilman ; that Gilman said he could get no answer from the defendant and added: “ She is at the Adams House, why don’t you go up to see her ? ” that he did go up on January 2, and that at that interview the defendant said “ she would not do anything about it just then; that she was going away, but that she would like to sell the property, and would sell it for $1,100,000, ‘And you see if you can get me a customer.’ I said, ‘ If you change your mind about renting it, let me know ’; she said she would.”
The defendant denied that any such offer from Gould and Polio was ever communicated to her, and testified that on December 29 she wrote to Gilman to “ take the sign down,” as she had made up her mind to sell the property if it took a year or even more than a year to do it; and that on January 2, she saw the plaintiff near the elevator and “ told him at once I would do nothing whatever with my property; that my mother and myself were disgusted with the whole business; that we were tired out and were going off to rest in Hew York.”
The refusal to give these rulings cannot be supported on the ground that a revocation of authority in fraud of the plaintiff’s rights is not in law a revocation.
This is not the accurate meaning of these two requests for rulings, and it is plain that they were not understood at the trial to have that meaning.
It is plain that the defendant did not so understand them. The only difference between the requests marked 8 and 9 on the
The presiding justice evidently did not so understand these requests. He told the jury that they could find for the plaintiff if they found that the plaintiff had not in fact been discharged, or if they found that he had been discharged in fact, but that that discharge was made in bad faith. His exact words were: The plaintiff says in the first place that he was the efficient, predominating cause of the making of that lease. He also says that he was in the employment of the defendant as broker up to the time when that lease was made. He further says that if you find that he had been discharged from his employment as broker by her before that lease was made, that the discharge was made in bad faith, and that he has a right, although so discharged, — a right to be in a position of being employed by her up to that time. You can take up those questions in any order you see fit.”
• And finally, it is manifest that the plaintiff’s counsel did not so understand them, at least when they made their brief in the case now before us. On the first page of their brief the plaintiff’s counsel say: “ The plaintiff contended that he was the efficient, predominating cause of the lease, that either the defendant had not terminated his employment before the agreement for the lease was really made or if the plaintiff’s employment had before then been terminated by the defendant, such termination was by the bad faith of the defendant.”
Under the instructions given to them, the jury may have found for the plaintiff on the ground that, independently of the question of bad faith, the plaintiff’s authority to get a tenant for the hotel was not revoked before the lease made to Gould and Polio in March, 1899.
As the exceptions to the refusal to give the rulings marked 8 and 9 asked for by the defendant must be sustained, it is not necessary to consider a question which arises in connection with the exceptions to the refusal to the rulings marked Eleventh, 13, 14, 22 and 23. The question is whether (so long as the verdicts stand which were ordered for the defendant on the third count at the second trial and on the fourth count at the fourth
Neither is it essential to consider whether it was necessary for the plaintiff to show that he was the efficient cause of the lease to Gould and Polio made in March, in addition to showing that the plaintiff’s negotiations with them had progressed so far on the date when the defendant revoked the plaintiff’s authority as to make that revocation a fraud on the plaintiff. It perhaps might be assumed that a broker’s authority is revoked in bad faith where negotiations had been carried on by a broker for his principal and had progressed so far at the time when the broker’s authority was revoked that he was found to be the effieient cause in fact of a trade subsequently struck between the principal and the customer. In such a case it would seem that the finding that the broker was the efficient cause of the trade made includes a finding that the revocation was in fraud of his rights. But it does not follow that a revocation of authority may not be in fraud of the broker’s rights when it could not be found that his acts before the revocation were the efficient cause of the subsequent trade. It seems to have been assumed at the trial that the plaintiff had to make out in proof two propositians, first, that he was the efficient cause of the contract subsequently made, and second, that the revocation of his authority was in fraud of the broker’s rights. But, as we have said, it is not necessary to consider those questions now.
The question of efficient cause is ordinarily at least a question of fact for the jury where no exclusive agency has been given and where two brokers have worked on the case, as in Crowninshield v. Foster, 169 Mass. 237. It is in that class of cases that ordinarily at least the substantial identity of the offer not accepted and the trade made is material.
Exceptions sustained.