302 Mass. 414 | Mass. | 1939
This is an appeal by the plaintiff from an order sustaining the defendant’s demurrer to the declara
The first count of the declaration alleges in substance the following material facts: At some time prior to February 23, 1934, the plaintiff, being the owner of land in Swampscott, was offering it for sale through one Merrill as broker. Subsequent to the plaintiff’s employment of Merrill, the plaintiff, at the defendant’s request, also employed the defendant as a nonexclusive broker to find a purchaser for the same property, the defendant understanding that another broker had also been employed by the plaintiff.
Merrill in attempting to find a purchaser had solicited one Winslow. Thereafter the defendant informed the plaintiff that one Andresen, of New York City, was willing to purchase the property for $50,000. Upon being asked by the plaintiff whether Andresen was acting for another, and particularly whether he was acting for Winslow, the defendant represented that Andresen was purchasing in his own behalf, and that Winslow had nothing to do with the purchase. In fact Andresen was the agent of Winslow, and the defendant was acting in behalf of Winslow to secure the property for him at the lowest possible price, and, by agreement with Winslow, to secure for itself the commission to which Merrill was entitled by virtue of having produced Winslow as a customer or purchaser. The defendant “well knew” that the plaintiff would not have sold the property to Winslow for $50,000 through the defendant, and for that reason the defendant and Winslow agreed to conceal the interest of Winslow and the fact that the defendant was acting for him.
On or about January 28, 1934, the plaintiff, not knowing the true facts, conveyed the property to Andresen for $50,000 and paid the defendant a brokerage commission of $2,150. In fact the consideration for the conveyance was paid by Winslow, and Andresen upon receiving his deed conveyed the property to him. Subsequently Merrill made a claim on the plaintiff for a commission for having brought about a purchase of the property by Winslow.
The defendant’s demurrer assigns seven grounds collectively to the effect that no cause of action was stated and that the plaintiff showed no damage. The demurrer was sustained.
The allegations of the declaration that the defendant, having been employed as broker by the plaintiff, in fact acted in the transaction in behalf of one who eventually purchased the plaintiff’s property,' that the defendant failed to disclose to the plaintiff the fact of its dual employment, and that the transaction was consummated and the commission paid without knowledge by the plaintiff of the true facts sufficiently set forth a cause of action, and, if proved, would result in the conclusion that the defendant thereby lost its right to obtain a commission from either principal. Farnsworth v. Hemmer, 1 Allen, 494, 495. Veasey v. Carson, 177 Mass. 117, 120-121. Libby v. Smith, 293 Mass. 465, 469, and cases cited. It is immaterial, if it be true in the case at bar, that no specific damage is claimed, for in such cases actual damage need not be shown, the rule of forfeiture of commissions being based on a public policy which refuses to enforce the commissions agreement in such circumstances because of the tendency to cause the broker to sacrifice the interests of one or both principals. “The contract is avoided on account of its necessarily injurious tendency.” Rice v. Wood, 113 Mass. 133, 135. Sullivan v. Tufts, 203 Mass. 155, 157. Friedman v. Ballard, 250 Mass. 167, 169. It follows that the first count of the declaration stated a good cause of action and as to that count the demurrer was improperly sustained.
The second count of the declaration was upon an account annexed and reads as follows: “Count II. And the plaintiff says that the defendant owes him the sum of $2150.00 with
It is settled that the two counts are separate and independent and that the allegations of one count will not be imported into the other unless done so by express terms. Kenney v. Boston & Maine Railroad, 301 Mass. 271, 274, and cases cited. This is so even if it is alleged, as in the instant case, that the other count is for the same cause of action. Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306, 310. The second count, on an account annexed, was sufficient. Money obtained through fraud or misrepresentation may be recovered back in an action for money had and received. Dana v. Kemble, 17 Pick. 545, 549. The demurrer therefore was improperly sustained as to the second count also.
The order sustaining the demurrer must be reversed and instead thereof an order is to be entered overruling the demurrer.
So ordered.