244 Mass. 481 | Mass. | 1923
The plaintiff, a real estate broker, in this action of contract sought to recover $5,100 on an account annexed; and on a second count to recover the same sum for commission or brokerage in the sale of property owned by the defendant. At the close of the evidence the judge ordered a verdict for the defendant, to which ruling the plaintiff excepted.
The defendant was the owner of the real estate in question. Miss Fitzsimmons, his agent, bought the property in 1915, and as such agent collected the rents, paid the taxes, “hired lawyers to get out tenants,” and had charge of the property. In 1919
There was evidence that in July or August, 1919, Miss Fitzsimmons asked the plaintiff to secure a purchaser for the block; that he interviewed certain persons and reported to her what he had done “and finally found Mr. Edward Watchmaker,” who was his “customer.” Watchmaker testified that Miss Fitzsimmons asked him “how . . . [he] came to know about the property. ... I told her I had obtained a statement from Mr. Edward Ginsburg through the plaintiff;” that he was not the buyer, that he was acting as the broker for Rudnick and Baer, “who finally bought the property.”
The evidence discloses that the only person authorized by the defendant to sell the property was Miss Fitzsimmons. He gave her no power to delegate this authority and he did not know that the plaintiff was hired by her. The employment of the plaintiff by her was without the express or implied consent of the defendant, and her employment as the agent of the defendant to make the sale did not give her the implied power to hire the plaintiff as a subagent of the defendant. This could not be done without his consent. There was no evidence of any privity between the plaintiff and the defendant. “A delegated authority can be executed only by the person to whom it is given, for the confidence being personal, cannot be assigned to a stranger.” Brewster v. Hobart, 15 Pick. 302, 307. Barnard v. Coffin, 141 Mass. 37,41. Sorenson v. Smith, 65 Ore. 78. There was no custom
Appleton Bank v. McGilvray, 4 Gray, 518, is not applicable. In that case the note was delivered to a carrier “to collect it in the ordinary way;” and it was the custom to collect notes by depositing them in a bank, as well as by calling on the parties personally. It was held that the directions given by the defendant were equivalent to authority to collect the notes by either of the modes.
There was no evidence of ratification. The defendant had no knowledge that the plaintiff was in any way instrumental in procuring the sale, or that he acted as his agent. As the plaintiff was not the agent of the defendant, it becomes unnecessary to consider the question whether the plaintiff was the efficient cause of bringing about the sale of the property. There was no evidence of fraud. Cohen v. Jackson, 210 Mass. 328. Barnard v. Coffin, supra.
Exceptions overruled.