277 Mass. 376 | Mass. | 1931
This is an action of contract to recover a real estate broker’s commission. The jury returned a verdict for the plaintiffs. The case is here on exceptions to the denial of the defendants’ motion that the trial judge require the plaintiffs to elect on which count of the declaration they relied, to the denial of the defendants’ motion for a directed verdict, to the admission of certain evidence, and to the refusal to give their requests for instructions.
The defendants are brothers-in-law. The defendant Gordon owned a house in Somerville, and the defendant Barron owned a brick block in Everett, hereinafter called the Everett Stores. There was evidence tending to show the following facts: In the spring of 1927, Gordon listed his house with the plaintiffs for sale. Late in September, 1927, Barron employed the plaintiffs to sell the Everett Stores at an asking price of $20,000, and the plaintiffs were to be paid the usual commission. At this time the plaintiffs had for sale certain real estate in Somerville called the Magoun Square block, for which the owner, one Liberman, was asking $80,000. The plaintiff, Max Glassman, who will hereafter be referred to as the plaintiff, testified that he told Barron about this property and that Barron said he would like to exchange his Everett Stores for it and said, “we could use the store for my brother-in-law.” At this time Gordon went to the plaintiffs and said that he understood Barron was interested in the Magoun Square block and that he would like to have his property go in on the trade with the Everett Stores for the Magoun Square block. Liberman refused to exchange as suggested, and when Barron heard of this he said to the plaintiff, “Well, go ahead, try somebody else, something else might come up in the matter of exchange or cash customer, see what you can do.”
In October, 1927, one Connors acquired the Magoun Square block and took title in the name of one Howlett, a
There was evidence that shortly after the above agreement was made Barron went to one Meehan, a real estate broker, gave him the details of his property, and told him he would like to have him see if he could exchange his property for the Magoun Square block. Meehan saw Connors, told him that Barron wanted to trade the equities
The evidence warranted a finding that the defendants in this transaction were partners. It is manifest that they acted together in a common enterprise in which both were' interested. As there was evidence that each defendant agreed to pay the commissions, the liability of each could be found from their individual statements. It was said by Chief Justice Knowlton as to one of the defendants in Runkle v. Burrage, 202 Mass. 89, at page 98, “In a. sense he was acting as their agent and trustee in matters in which he and they had a common interest. They were quasi partners with him in the enterprise, and his relation to them was analogous to that of a partner to his copartner.” See Smith v. Burton, 59 Vt. 408. See also Currier v. Sillo
It could have been found that the plaintiffs were the active, efficient, and effective cause of the exchange, and are therefore entitled to their commissions, although the bargain was consummated by Meehan who was employed by the defendants without the knowledge of the plaintiffs. Dowling v. Morrill, 165 Mass. 491. Fitzpatrick v. Gilson, 176 Mass. 477. Cesana v. Johnson, 232 Mass. 444. Doten v. Chase, 237 Mass. 218. Buono v. Cody, 251 Mass. 286. Elliott v. Kazajian, 255 Mass. 459. They are not precluded from recovering because the transaction was concluded in their absence, “otherwise-brokers always might be cheated out of their commissions.” French v. McKay, 181 Mass. 485, 486. Willard v. Wright, 203 Mass. 406, 409. The promise of the defendants to pay both commissions was one of the terms by which the exchange was made possible; that promise was a primary obligation on their part to the-plaintiffs. When Connors and Howlett agreed upon the defendants’ terms to make the exchange on the basis that the equities of the respective properties should be equal, and that the defendants should pay both commissions, the plaintiffs had fully performed their contract with the defendants and had earned their commissions. Furthermore, the evidence warranted a finding that the defendants completed the transaction without the knowledge of the plaintiffs for the purpose of avoiding the payment of commissions to them. Such a purpose would be an act in bad faith and does not deprive the plaintiffs of their right to recover. Dowling v. Morrill, 165 Mass. 491. O’Connell v. Casey, 206 Mass. 520. Semonian v.
Although the evidence was conflicting, it is manifest that a verdict could not properly have been directed in favor of either defendant, and the exception to the refusal of the judge to direct such a verdict cannot be sustained.
The defendants excepted to the admission in evidence of conversations between Hewlett and Connors 'and the plaintiffs in the absence of either of the defendants. The trial judge admitted the evidence for the purpose of showing the fact that such conversations occurred, but not to prove the truth of what was said. We are of opinion that thé evidence was admissible. It had some tendency to show that the plaintiffs were the efficient cause of the exchange of the properties, and was not inadmissible as hearsay. Where, as here, the fact in issue is whether the plaintiffs were the active and efficient cause of the exchange, the conversations were direct and primary evidence on that issue. See Hubbard v. Align, 200 Mass. 166, 174; Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5; Fleming v. Doodlesack, 270 Mass. 271; Commonwealth v. Gallo, 275 Mass. 320, and cases cited at 329; McDonald v. Smith, 99 Minn. 42, 44-45; Huff v. Cole’s Estate, 127 Mich. 351; Obenauer v. Solomon, 151 Mich. 570, 575; 3 Wigmore on Ev. §§ 1770, 1772. In any event the defendants were not prejudiced by the admission of the conversations as the substance of them was afterwards testified to by Hewlett who was called as a witness by the defendants. Morrison v. Lawrence, 186 Mass. 456, 458. Clark-Rice Corp. v. Waltham Bleacherg & Dye Works, 267 Mass. 402, 412.
The exception to the judge’s refusal to require the plaintiffs to elect on which count of the declaration they relied is not argued and is deemed to be waived. The defendants in their brief expressly waived the exceptions to the refusal of the judge to give their requests for instructions.
Exceptions overruled.