290 Mass. 202 | Mass. | 1935
This is an action of contract to recover a balance alleged to be due to the plaintiff for his services in arranging for an extension of certain mortgages. The defendant has pleaded that if any promise on his part to pay the plaintiff is proved, it was an oral promise to pay the debt of another and was unenforceable by reason of the statute of frauds, G. L. (Ter. Ed.) c. 259, § 1, Second.
The trustees of the “I. & S. Realty Trust,” hereinafter called the trust, owned certain lands and buildings on Linnaean Street and on Washington Avenue in Cambridge. Each of the two parcels was subject to a first mortgage held by the New York Life Insurance Company. The defendant held a second mortgage on the same properties and had entered, thereon for breach of the conditions thereof, but had not completed a foreclosure. In March, 1932, the trust' employed the plaintiff, who was a real estate broker in New York, to procure extensions of the insurance company’s first mortgages without any payments on the principal and with a reduction in interest from six per cent to five per cent. There was evidence from which the following facts could have been found: While the negotiations were proceeding and after the plaintiff had endeavored without success to procure from the defendant a written “authorization” through a representative of the trust, the plaintiff had an interview with the defendant at the defendant’s house in Dorchester, in which he told the defendant that before the plaintiff would have the insurance company’s appraiser look at the properties, he wanted the defendant to sign the “authorization” and to tell the plaintiff who was going to pay for his services. The defendant said, “I will pay you for the services.” He also said he did not want his name to appear in any way in any papers that were signed, but that the plaintiff should send his bill to the trust “in the regular routine way” and the defendant would pay it. The defendant said he was collecting the rents and making all disbursements, that he did not “want to sign any papers at all. My word is good enough. . . . Whatever I tell you, I will do.” Immediately after this talk the defendant went with the plaintiff to Cambridge to see the representative of the trust,
On cross-examination the plaintiff testified that he knew the trust owned the properties and did not know that Bailen was mortgagee in possession until August, 1932; that up to September 7 he represented only the trust; that on January 4, 1933, when he sent his bill, he claimed the trust owed him $3,000 and that it was the claim against the trust which he desired the defendant to pay; that at the time of his first interview with the defendant the plaintiff understood the defendant was going to pay the bill for the trust. “Q. No question about that, is there? A. From what I can gather, no. He said he would pay the bill that I would render the I. & S. Realty Trust.” On redirect examination he testified that he claimed the defendant owed the bill. In answer to the further question “Whom do you claim [owes the bill]?” he replied, “I. & S. Realty Trust. Mr. Bailen, I. & S. Realty Trust.”
The ruling of the trial judge was right. It is a close question whether the admissions made by the plaintiff in cross-examination are not conclusive against him that any promise made by the defendant was a promise to pay the debt of the trust within the statute and not an original undertaking on the defendant’s part. But we prefer for the purpose of this
In many cases it has been held that a promise is, or may be found to be, an original one because the promisor received from the promisee in exchange for it some new interest in property which he had not previously owned or the discharge of a lien or of some other encumbrance on property in which he was interested. Nelson v. Boynton, 3 Met. 396. Curtis v. Brown, 5 Cush. 488. Ames v. Foster, 106 Mass. 400. Wills v. Brown, 118 Mass. 137. Manning v. Anthony, 208 Mass. 399. Crowley v. Whittemore, 255 Mass. 99. Kahn v. Waldman, 283 Mass. 391. But in this case both promisors were interested in the same property for which they got precisely the same benefit and protection by the same performance on the part of the plaintiff. The plaintiff gave nothing to either different from that which he gave to the other. The cases of Paul v. Wilbur, 189 Mass. 48, P. Berry & Sons, Inc. v. Central Trust Co. 247 Mass. 241, 245, and Washington & Devonshire Realty Co. Inc. v. Freedman, 263 Mass. 554, cited by the plaintiff, really belong to the same type as those previously cited. The rather broad language used in them is explained in Colpitts v. L. C. Fisher Co. 289 Mass. 232, where many of the cases are collected and discussed. See also Furbish v. Goodnow, 98 Mass. 296; Gill v. Herrick, 111 Mass. 501; Carleton v. Floyd, Rounds & Co. 192 Mass. 204; Ribock v. Canner, 218 Mass. 5; George Lawley & Son Corp. v. Buff, 230 Mass. 21; and Collins v. Abrams, 276 Mass. 106.
We are further of the opinion that the evidence tending to show that after the defendant entered upon the properties he left the “management” to the agents of the trust, taken in connection with its context, cannot be stretched so far as to support a finding that the defendant gave those agents authority to make in his behalf an original contract to employ a broker to procure extensions of the mortgages or otherwise to deal with financing problems, but that it went no further than to show authority to procure tenants, collect rents, make ordinary repairs and to manage the properties in respect to routine matters.
Exceptions overruled.