325 Mass. 314 | Mass. | 1950
This is an action of contract to recover one half of a broker’s commission received by the defendant in connection with the sale of a store in the city of Lowell. The declaration contains two counts. The first count alleges an express contract between the plaintiff and the defendant to
The following facts could have been found: The plaintiff and the defendant were real estate brokers. The defendant’s place of business was in Lowell. From 1935 until November, 1941, the plaintiff’s place of business was in New York •city. Until sometime in 1938 he was associated there with a, corporation (William B. Nichols & Co., Incorporated) of . which he was a vice president. All of the real estate business •of that corporation was transacted through the plaintiff, who was the only person connected with it who had a broker’s license. Sometime in 1938 the plaintiff severed his connection with that corporation and went into business with one Rogers. The plaintiff and Rogers conducted a real estate business under the name of Jennings & Rogers Company in New York city until October or November, 1941, when the plaintiff moved to Atlanta, Georgia, where he opened a real estate office of his own.
In December of 1935, or in January, 1936, the defendant consulted the plaintiff concerning a certain store in Lowell called the Pollard store, which the owners had employed him to sell, with a view to selling it to the Allied Stores Corporation, hereinafter called Allied, for which the plaintiff and the Nichols company had acted in connection with matters pertaining to real estate. The plaintiff told the defendant that the usual broker’s commission would be expected in this or in any other case and that “we would divide commissions 50/50.” The plaintiff stated that he would be willing to assist the defendant on the basis of the usual brokerage commission. In February, 1936, the plaintiff went to Lowell and conferred with the defendant and the owners of the Pollard store. Later that year he went to Lowell with one Puckett, president of Allied, and showed him the Pollard
The defendant’s motion for a directed verdict was rightly denied. The jury could have found on the evidence that an express agreement was entered into in December, 1935, or January, 1936, whereby the parties agreed to work together on the Pollard matter and that in that case, or in any other, they would share commissions on an equal basis. When asked on cross-examination whether he had an absolute agreement with the defendant to be paid one half of any commission that the latter might receive in connection with the Bon Marche matter, the plaintiff replied, “That is my recollection.” Confirmation of such an agreement may be found in the correspondence between the parties. A letter dated November 4, 1940, written by the defendant to the plaintiff contains the following: “I spent the greater part of last Friday afternoon with Mr. Wenigman of the Bon Marche Company discussing the proposition of the sale of his company. ... He asked me if, in the event of a sale for part cash and part stock, we would expect all cash as our commission and I told him, subject to your approval, that we might consider five per cent of the cash payment and five
The defendant argues that if there was an agreement with respect to the commission it was made between him and the Nichols company, of which the plaintiff was an officer, rather than with the plaintiff individually. Concerning this contention the following facts could have been found. The defendant at all times dealt with the plaintiff personally and with no other member of the Nichols company. The plaintiff was the only person connected with the corporation who had a real estate broker’s license and, so far as appears, all its real estate business was transacted by the plaintiff. All communications down to 1940 were sent by the defendant to the plaintiff at the address of the corporation. Thereafter they were sent to the plaintiff personally at the office of Jennings & Rogers Company. After the plaintiff moved to Atlanta the defendant continued to communicate with him there in his individual capacity. At a conference between the plaintiff and the defendant in New York in September, 1940, the defendant asked the plaintiff if it was true, as had been reported, that he was not handling Allied’s real estate any longer, and the plaintiff replied that it was. The defendant then asked the plaintiff “what effect that might have on the deals we had up with Allied.” The plaintiff stated that it would have no effect and that he knew Puckett and Allied well enough so that if “we had anything they . . . were interested in . . . £they] would deal with us.” The jury could have found from this testimony that the agreement was made with the plaintiff individually.
The defendant further argues in effect that, even if there was an agreement to share commissions, the plaintiff under it was obliged to do something toward effecting the sale and that he did nothing. That contention is not borne out by the evidence. There does not appear to be anything in the
Finally, relying on cases such as Quinn v. Burton, 195 Mass. 277, and Kurinsky v. Lynch, 201 Mass. 28, the defendant argues that to be lawful an agreement between brokers to share commissions must be with the knowledge and assent of their respective principals, and that there was no evidence that either Bon Marche or Allied knew of the
Exceptions overruled.
The defendant in his letter of November 8, 1941, suggesting that the plaintiff take up the Bon Marche matter with Allied, stated, “and upon advice from you I could follow them [up] in New York.”