266 Mass. 270 | Mass. | 1929
The plaintiff brings this action upon an account annexed to recover a commission, as broker, on the fourth annual premium, payable in 1922, on a bond executed by the Hugh Nawn Contracting Company, as principal, and the defendant, as surety. The bond runs to the Board of Water Supply of the City of New York, as obligee, and covers the construction of a dam.
Before 1912 the plaintiff had been an employee of the defendant, and when terminating the employment the defendant’s president offered to pay him a commission of twenty-five per cent on all business, including bonding and insurance, procured by him for it. During the years 1912 to December 1919, the plaintiff procured for the defendant bonding contracts of the Hugh Nawn Contracting Com-
The first premium due on the bonding contract in question was charged on the books of the defendant to the plaintiff, and in July, 1919, it sent a bill to him for the amount, with other items not material to the case. The plaintiff asked for and received a separate bill for this one item. Evidence was introduced which would justify a finding that before this premium was paid by the assured the defendant had notified the plaintiff that he was relieved from any duty to collect the premiums on this bond, and that it undertook to collect them without the aid of the plaintiff. None of the annual premiums on this bond, after the first, was charged to or collected by the plaintiff. In January, 1920, the plaintiff wrote the defendant that he had been advised that the first premium had been paid, and asked for a check for his commission. This commission was paid and before the trial the plaintiff had also been paid a commission on the annual
In reaching that decision they had a right to take the view of the evidence most favorable to the plaintiff. Reed v. Edison Electric Illuminating Co. 225 Mass. 163,164. Marsal v. Hickey, 225 Mass. 170,173. Margeson v. Town Taxi, Inc., ante, 192. The parties were limited to the issues presented by the pleadings. Snowling v. Plummer Granite Co. 108 Mass. 100. Wood v. Sherer, 186 Mass. 562, 563. “Under the common counts in indebitatus assumpsit at common law, or under a count on an account annexed under the new practice act, the plaintiff may recover either money due under a special contract which has been fully performed, or the value to the defendant of work done and materials furnished under it.” Gray, C.J., in Cullen v. Sears, 112 Mass. 299, 308. Fisher v. Doe, 204 Mass. 34, 38. When work performed under a special contract is fully performed and nothing remains to be done but the payment of money, recovery may be had on a count on an account annexed. Fish v. Gates, 133 Mass. 441. But, even if the plaintiff’s part of the contract has been performed, he cannot recover on such a count if payment was not due when his action was begun. Hutchinson v. Plant, 218 Mass. 148, 155. Stuart v. Clark, 259 Mass. 383, 387. The plaintiff’s contention is that the contract has been fully performed on his part and that nothing remained to be done under it but the payment of money by the defendant. He could not recover, and is not seeking to recover in this form of action, damages for breach of contract. Lowe v. Pimental, 115 Mass. 44. Bowen v. Proprietors of the South Building, 137 Mass. 274. Gillis v. Cobe, 177 Mass. 584, 592. F. W. Stock & Sons v. Snell, 213 Mass. 449.
The evidence was sufficient to support a finding that the plaintiff was the efficient cause of procuring for the defendant the bond in question running for four years with annual premiums of $45,000 each. Upon the plaintiff’s own testi
The plaintiff’s contention, that he should recover because prevented by the defendant from performing his part of the contract, cannot be maintained. Under the plaintiff’s contract, upon the declaration and evidence he cannot recover what his services were reasonably worth. He is seeking to recover a commission and interest. In Johnson v. Trinity Church Society, 11 Allen, 123, 127, the recovery was for salary due under the contract. Cases like Dalton v. American Ammonia Co. 236 Mass. 105,107, are distinguishable in their facts from the case at bar.
There is nothing in the testimony to show bad faith or that the defendant failed to exercise due diligence in attempting to make collection of the premium due in 1922, or that the premium could have been collected by the plaintiff.
As the plaintiff has not proved that the premium had been paid, he cannot recover, and the defendant’s motion for a directed verdict should have been allowed.
Exceptions sustained.
Judgment for defendant.