Hoadley v. Savings Bank

71 Conn. 599 | Conn. | 1899

Hamebsley, J.

The letter of the plaintiff to the president of the defendant corporation was not admitted as a declaration in support of the truth of the statements it contained, but as a fact relating to the conduct of the parties in respect to the transaction in dispute, prior to the consummation of the sale. For that purpose it was admissible.

The admission, of the latter part of Osborne’s deposition, upon rebuttal, was within the discretion of the court.

The other claims of the defendant are included under four heads: 1. The alleged insufficiency of the facts found to support the judgment rendered. 2. The alleged insufficiency of the testimony given to support the facts found. 3. The alleged omission from the finding of facts material to present the questions of law decided by the court. 4. The alleged finding of material facts without any evidence to support them.

First. Where an owner places land with a real estate broker for sale, he agrees, in the absence of any special contract, to pay the customary commission or brokerage in case a sale is consummated with a purchaser who was led to begin the negotiation through the intervention of the broker. It is immaterial that the purchaser at some prior time had been engaged in a bootless negotiation with the owner in respect to the same property, or that the owner, after the broker has interested the purchaser, secretly pursues the negotiation and himself completes the sale, or that the owner of his own accord effects a sale at a less price than that he gave the broker. If any act of the broker in pursuance of his authority to find a purchaser is the initiatory step that leads to the sale consummated, the owner must pay the commission. Lincoln v. McClatchie, 36 Conn. 136, 141; Schlegal v. Allerton, 65 id. 260, 264. Applying this well settled law to the facts found, judgment for the plaintiff must follow.

Whether or not a particular person is the “ procuring cause ” of a sale, is a question of fact for the jury; but the defendant claims that upon a trial to the court the conclusion of the judge is erroneous if he violates any rule or principle of law in drawing that conclusion from the subordinate facts found, and that if Iris conclusion from the subordinate facts is in plain conflict with the settled rules of logic and sound reasoning, he does violate a principle of law and his conclusion is reviewable by this court as an error in law. This claim is correct. Nolan v. New York, N. H. & H. R. Co., 70 Conn. 159, 173, 183. Testing the judgment in view of this claim, the court below finds that the plaintiff interviewed Bishop (the purchaser), called his attention to the property, and urged upon him considerations that should induce him to renew his negotiation for its purchase; that in pursuance of this Bishop applied to the plaintiff for permission to examine the property, obtained entrance to the building through information given him by the plaintiff, and examined the property; and that shortly after Ms mind had been so directed by the plaintiff to a purchase, the defendant, through its president, Bacon, without the knowledge of the plaintiff, took up the negotiation with Bishop which resulted in a sale. There are no other facts which essentially affect the force of these upon the question of “ procuring cause.”

We cannot say that the inference drawn by the court from these facts is unreasonable. The procuring cause of sale is such intervention of the broker for that purpose as constitutes the foundation on which the negotiation is begun. The court might reasonably infer that the efforts of the plaintiff to induce Bishop to renew his attempt to purchase were the origin of the negotiation and resulting sale. If so, the plaintiff was the procuring cause.

Second. The facts adjudicated by the trial court cannot be retried here upon the certified testimony. This is too firmly settled by repeated decisions to admit of discussion. A record should not be cumbered with such futile assignments of error.

Third. The defendant claims that the fact that the sale was made by the defendant through its president to Bishop, and the fact that the exclusive sale of the property was not given to the plaintiff, were improperly omitted from the finding of the court. The facts seem to be substantially included in the finding; but however that may be, an inspection .of the evidence certified shows that they were admitted or undisputed facts; and we have treated them as included in the finding. The omission of such facts is not an error that affects the judgment, unless by correcting the record and includmg them in the finding, it appears that the court erred in its ruling on some question of law material to the judgment. The correctness of the rulings of the court below is not affected by including these facts in the finding.

The defendant further claims that the fact that the defendant, through its president, told the plaintiff, before the property was sold, that if the defendant was compelled to sell the property for $25,000, no broker’s commissions would be paid by the defendant, is improperly omitted from the finding. This fact might be material to present a question of law raised by the defendant on the trial, and if it were an admitted or undisputed fact its omission would be an error which, if material, we should correct. An inspection of the evidence certified does not sustain the defendant’s claim. If we were to treat this fact as included in the finding, the defendant’s claim of law could not be sustained. • After a broker has rendered the services which make him the procuring cause of a sale, the owner cannot escape liability by telling the broker that he will pay no commission if he decides to sell at a certain sum. The alleged remark of Mr. Bacon, to have any force, must have been made prior to the rendition of the plaintiff’s services. This does not appear. The law is clear that a broker does not forfeit his commission because the owner avails himself of the services rendered to sell at a price less than that limited (Schlegal v. Allerton, supra) ; and the owner’s position is not improved, if he seeks to fortify his evasion of liability by telling the broker, after the rendition of the services, that he will pay no commission if he (the owner) sells at such price.

The other exceptions to the finding do not call for special notice.

Fourth. The claim that the court has found material facts without any evidence to support such finding, is baseless. On the contrary, it is apparent from the record—and the more apparent the closer the record is studied—that any judge hearing this evidence, weighing the conflicting testimony and passing on the credit of the witnesses as they appeared upon the stand, might reasonably reach the conclusion of the trial court.

In Thresher v. Dyer, 69 Conn. 404, 408, we stated the legal effect of recent legislation (since consolidated in the Act of 1897, Public Acts of 1897, pp. 888, 895;, relative to procedure on appeals to this court. The peculiar construction of this appeal suggests the advisability of a more particular statement.

A finding by the trial judge is unnecessary when the record of the court, including the judgment file, discloses the alleged errors; that is, it is unnecessary when the appeal is used as a substitute for the former motion in error; but the ultimate and subordinate facts on which the judgment is founded must, on request of counsel, be stated in the judgment. When the appeal is used as a substitute for the former motion for a new trial, or for such motion as well as for a motion in error, a finding by the trial judge is necessary, and may serve a triple purpose.

First, it may contain a statement of the facts on which the judgment is founded. Strictly these facts should appear in the judgment, as when the appeal serves the purpose only of a motion in error; but the practice is, authorized inferentially by the statute, to include these facts in the finding, when one is necessary. No error can be assigned in respect to weigfiing the evidence from which these conclusions are drawn. They are adjudicated facts which this court cannot retry. Where the ultimate facts are mere conclusions from subordinate facts found from the evidence, a party is entitled to have the subordinate facts stated, for such conclusions may be reviewable. But these subordinate facts must be facts found from the evidence, and not a mere recital of the testimony.

Second, the finding may contain a statement of facts found which are necessary to present a question of law, and the question of law must be one made at the trial and decided by the judge. Such facts, whether affirmative or negative, are adjudicated facts which this court cannot retry; but they may not be included in the statement of facts on which the judgment is founded, because the question of law which made them material has been decided adversely by the judge. It is for the purpose of securing the statement in the finding of such facts, that the process provided in sections nine and ten of the Act of 1897 is chiefly efficacious. If such facts are omitted, the appellant may file exceptions to the finding and have the evidence relevant to the question certified, for the purpose of making it appear by the record that it was an admitted or undisputed fact. Or, if this course is not followed, the appellant may, under sections eleven and twelve of the Act, apply to this court to rectify the appeal. But in either case, it must appear that the omitted fact was an admitted or undisputed fact, and that its statement in the finding is necessary to properly present a question of law decided adversely to the appellant. If it so appear, then the finding will be corrected by treating it as containing the fact, and the question of law will be considered in view of the corrected finding. This process is well adapted to prevent the omission from the finding, of material facts found by the trial*court, but it is an abuse to use the process for the mere purpose of asking the statement of a fact in the language of the counsel rather than of the judge, or of loading the record with insignificant facts.

Third, the finding may contain a recital of what actually took place at the trial, for the purpose of presenting for review rulings of the trial court upon questions of evidence or other rulings not directly affecting the judgment. Such recital is made from the notes of the judge, which were formerly the only authentic source from which such facts could be made to appear, but now the notes of the official stenographer furnish another authentic source. And, if necessary, under the provisions of sections eleven and twelve of the Act, such notes may be made to appear in the finding, so that this court, may review the rulings complained of, in connection with the state of facts existing at the trial as shown by the recital of the judge read in the light of the certified evidence. The addition of long extracts from the stenographer’s notes, is, however, rarely necessary; a brief statement by the judge is clearer and usually sufficient.

The process authorized by the statute is intended, primarily, to facilitate the fullest possible exercise of jurisdiction by this court in correcting errors in law, and we have given the statute a very broad construction to give effect to this purpose. If an appeal is properly prepared by the appellant, it is difficult, if not impossible, for a trial court to so frame a finding that this court cannot get at the substantial errors in law involved. So far, however, as the language of the statute may imply a determination by this court upon the evidence certified, of facts lawfully adjudicated by the trial court, it was decided in Atwater v. Morning News Co., 67 Conn. 504, and in subsequent cases, that we are prevented from giving it effect by the paramount authority of the Constitution.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.