310 Mass. 609 | Mass. | 1942
The first action is in contract to recover a commission from a trust, organized under a written declaration of trust and having transferable certificates representing the beneficial interest therein, for securing a tenant in the trust property and a purchaser of one half of the trust certificates; and the second action, so far as now material, is in contract to recover a commission, on account of the said lease and said purchase, from the executors under the will of one McGregor, hereinafter called the testator. The plaintiff excepted to the direction of a verdict for each defendant. The parties have stipulated that, if "there was sufficient evidence to warrant a verdict for the plaintiff on any of the counts in either of the declarations,” then a judgment was to be entered for the plaintiff in each case for a designated amount.
The trust was the owner in 1935 of a large commercial building in Boston which was not fully occupied by tenants. One Anderson and the testator were the trustees. Anderson lived in New York and seems not to have been as active
The jury could find .upon the evidence that the plaintiff accepted the offer of the testator of September, 1935, and that upon the performance of his services in seeking and securing tenants for the trust property he was to be paid compensation in the amount and at the times promised by the testator. The plaintiff did not agree to work for any definite time, nor did the testator agree to employ him for any stated period. Either could have terminated the employment when he desired to do so or at least at the end of each week while the employment continued. Harper v. Hassard, 113 Mass. 187. Tubbs v. Cummings Co. 200 Mass. 555. Campion v. Boston & Maine Railroad, 269 Mass. 579. It might have been found that the testator, however, did not terminate the plaintiff’s services when he learned of the efforts of the plaintiff and Scudder with the firm, but offered to change the terms of the plaintiff’s employment by relieving him from doing anything further to secure a lease from the firm and promising to pay him if he continued in the service of the testator compensation at the rate of $30 a week and one half of the commissions that he earned plus one half of the commission if the testator succeeded in consummating a transaction with the firm. There was evidence that the plaintiff accepted the change in his duties suggested by the testator and that, relying upon the promise of the testator, he continued in his employment until it ceased by mutual consent in August, 1936. The promise of the testator to pay the plaintiff compensation
Although the plaintiff testified on cross-examination that at no time was his contract with the testator modified, yet he had fully testified to the arrangement that was made in reference to the firm, and the jury could consider his entire testimony and determine- for themselves the exact nature of the contract existing between the parties. They could find upon the evidence that the payment of a commission was just as much a part of the contract as was the payment of the weekly wages, and could properly refuse to deal with the matter of commission as something separate and independent of the contract of employment. Zampatella v. Thomson-Crooker Shoe Co. 249 Mass. 37. Patton v. Babson’s Statistical Organization, Inc. 259 Mass. 424. The jury were not obliged to accept the plaintiff's interpretation of the contract nor were they precluded from finding that the terms of employment were changed in so far as they related to the dealings with the firm. Smith v. Plant, 216 Mass. 91, 98, 99. Campion v. Boston & Maine Railroad, 269 Mass. 579, 582.
The promise' by the testator to see that the plaintiff, if he would withdraw from further negotiations with the firm, would be taken care of was not too vague, uncertain or indefinite to render it incapable of being enforced.. The jury might find that, in the circumstances, the plaintiff was to be paid the same compensation as if he himself had successfully negotiated the lease. In other words, the agreement
The plaintiff was entitled to go to the jury on the third count of his declaration in the action against the executors, Larson v. Sylvester, 282 Mass. 352; Dolben v. Gleason, 292 Mass. 511; Anglo-American Direct Tea Trading Co. v. Seward, 294 Mass. 349, and, in view of the stipulation fixing the amount of the judgments if the plaintiff was entitled to recover any amount, it is unnecessary to decide whether the plaintiff could recover a commission on the sale of the trust shares or whether there was error in directing verdicts on the remaining counts. Nor need we determine whether the trust was also liable, as the stipulation provides that if there was error in directing a verdict in the case against the executors then judgments were to be entered in favor of the plaintiff in both actions for the amounts designated. Accordingly, judgments for the plaintiff must be entered in said amounts.
So ordered.