Kurinsky v. Lynch

201 Mass. 28 | Mass. | 1909

Braley, J.

If the original pleadings did not raise the issue, early in the trial the defense relied on was, that the contract whereby the defendant agreed to sell the property had been fraudulently obtained. But, with the understanding that amended answers should be filed, the trial proceeded, and the allowance of the amendments after verdict as of an earlier date was within the discretionary power of the court. Cronan v. Woburn, 185 Mass. 91.

In the first action, the plaintiff was an assignee within the purview of R. L. c. 173, § 4, and, a sale having been effected to Levy, until the defense of fraud had been pleaded, there was no evidence on which the defendant could impeach the contract, and the proof of her signature not having been required by the answers, the plaintiffs in both actions on proving performance on their part and a failure to perform by her would have been entitled to prevail. If, however, the defendant’s evidence was accepted, she believed and understood that throughout the entire transaction she was dealing with Levy alone, to whom, acting by her daughter as agent, the written contract for a sale of the real estate at first had been executed and delivered. The jury-further could find, that, from the beginning of the negotiations, the acts and conduct of all the plaintiffs in procuring the first paper, which named Levy alone as the purchaser, the immediate assignment by him to Abraham Kurinsky, followed by the procurement from the defendant of a ratification in writing, with the important modification giving to Levy’s appointee or assignee the right to a conveyance, the payment by Kurinsky of Levy’s check received in part payment of the purchase price, were circumstances which tended to support her contention, that Levy never intended to buy and that the contract in its final form had been procured through the misrepresentations of all of them acting in concert. Freedley v. French, 154 Mass. 339. Bliss v. New York Central & Hudson River Railroad, 160 Mass. 447. Gurney v. Tenney, 197 Mass. 457. It is true that a few weeks later, upon ascertaining that the title was not clear, the defendant returned the money to Kurinsky which up to that time she had retained. But how far this delay, or her reading of the whole or a part of the paper before signing, tended, if at all, to show that the defense of fraud was an afterthought to avoid the payment of damages or brokerage, was also for the jury to determine under instructions to which no exceptions were taken. By their verdict for the defendant, they must have reached the conclusion that the defense had been established.

While there were two issues, one of which was whether the sale to Kurinsky was induced by fraud, yet the other, whether the plaintiffs in the second action were entitled to commissions, depended upon the first, for, if the contract was avoidéd by reason of the fraud in which they participated, there was no sale, and, if there was no sale, a commission had not been earned. Trambly v. Ricard, 130 Mass. 259, 261. O’Donnell v. Clinton, 145 Mass. 461, 462. McNamara v. Boston Elevated Railway, 197 Mass. 383.

The third, fourth and fifth requests, as the counsel for the plaintiffs suggest, accordingly are no longer material. The eighth request and the ninth, except as to the burden of proof which was given, were refused properly, and the instructions upon the questions raised correctly stated the law. In refusing the third no error was committed, as the request omitted the important qualification that to be lawful an agreement between brokers to share commissions must be with the knowledge and assent of their respective principals. Quinn v. Burton, 195 Mass. 277. The testimony in cross-examination of the plaintiff Blue, which was finally admitted, that the defendant said to her, “if I had known Mrs. Kurinsky was buying the property or claiming a commission I never would have sold ” was relevant after the defense of fraud had been pleaded. If the defendant had been deceived as she testified, this plaintiff had participated in the fraud. In her direct testimony she had said substantially that it was her understanding that Levy and not Kurinsky had bought the property. The conversation took place on the night of the sale, and when, after talking about the parties in terms which the jury might find were intended to mislead, the fact, that after the defendant had made the statement previously quoted the plaintiff made no reply and expressed no surprise or dissent, was conduct inconsistent with her other testimony and which tended to contradict her. Reeve v. Dennett, 137 Mass. 315.

Exceptions overruled.