280 Mass. 128 | Mass. | 1932
This is an action brought to recover damages for an alleged breach of contract. The trial judge at the close of the evidence directed the jury to return a verdict for the defendants, after the parties had entered into a stipulation, in substance, as follows: It is agreed by the parties that the court shall order a verdict for the defendants; that the plaintiff takes exception to that order of the court and will take the case to the Supreme Judicial Court; that if the Superior Court erred in not submitting the case to the jury on evidence properly admitted or improperly excluded, judgment shall be entered for the plaintiff in the sum of SI,650 with interest at six per cent from June 1, 1926, to the date of judgment. It was further recited that “the defendant admits for purposes of this case that the contract testified to was between the plaintiff and Charles H. Pearson.”
There was evidence tending to show the following facts: The plaintiff was a real estate broker. On or about February 1, 1916, Charles H. Pearson, the defendants’ testator, employed the plaintiff to negotiate for him a lease of a store and basement of a building, owned by the testator’s wife, Louler N. Pearson, situated at number 180 Tremont Street, Boston. On March 23, 1916, as a result of the plaintiff’s negotiations a lease was entered into between Pearson’s wife and The Kelsey Company for the term of ten years from June 1, 1916, with an option, recited in the lease, as follows: “It is understood and mutually agreed to that the Lessee has the right to renew this lease for the term of
Percy E. Woodward, called by the plaintiff, testified that in 1925 and 1926 he was president and a director of the Waldorf System Incorporated, and in active charge of its affairs; that in the early part of 1925 he had a talk with Pearson, who asked for an appointment. Subject to the defendants’ exception this witness testified as follows: “Pearson said that the Waldorf had a right to exercise an option to have 180 Tremont Street for ten years, — an extension of the lease; it was about a year ahead of when the lease was to take place, and on account of financial conditions he didn’t want us to exercise the option as he felt that he should not be obliged to pay the commission until the time that the lease started, — until the time that the last ten years came into effect. He wanted to know if the Waldorf wouldn’t consider a new agreement with him, that we would not exercise the option until say a month before the lease expired, the first ten years expired. He said if we would agree to extend the lease and agree to an extension, or have another paper so that we would not exercise the option that there would be no more trouble of trying to break the other lease, which he was continually trying to do, because he claimed The Kelsey Company had no right to give this option for an extension to the Waldorf System, and also that the Waldorf System was doing things that violated the lease. He said that there was a commission due somebody. He said that according to the lease he was obliged to pay a commission and he didn’t want to pay it one year ahead of the time when the new lease went into effect. That is the only reason he gave. Witness told Pearson that the Waldorf System wished to avail itself
Woodward testified, subject to the defendants’ exception, that at that time the Waldorf System Incorporated, was ready, willing and able to renew the lease. Written notice of the exercise of the option was never given by the Waldorf System Incorporated. The plaintiff’s counsel offered to show that, through an oversight of Woodward’s subordinate who was charged with the giving of notices, the failure to give the notice was due to an inadvertence. This evidence was excluded, subject to the plaintiff’s exception.
After June 1, 1926, Woodward again talked with Pearson and took with him a check that Pearson had sent back by mail to him personally. He told Pearson that apparently from the letter which he had with him the Waldorf System Incorporated, had not exercised the option of the lease for ten years, and asked Pearson to recall “that he had consented to the extension for the giving of notice not only against the advice of his attorney but purely and simply as man to man, which Pearson had asked him to do as a favor to him.” Pearson said he was very sorry but the circumstances were such that the Waldorf System Incorporated, had evidently overlooked exercising the option and he should stand by it. Woodward asked Pearson if he realized the position he was putting him in before his board of directors. Pearson replied that “he admitted that it might be pretty sharp, that he had a family to look after, that possibly he was pulling a sharp trick but nevertheless it was the way the thing had come out, and the company would not exercise the option.” Pearson said: “I will give you a lease for two months, but I am negotiating with somebody and then, without doubt, they will give the Waldorf an extension of five or six months at least, tenants at will, until they wish to remodel the building.”
The plaintiff testified that early in 1925 he asked Pearson if he had renewed the lease with the Waldorf System
The words “if said option is exercised,” contained in the brokerage agreement, as matter of law import a condition of the payment of the commission. Alvord v. Cook, 174 Mass. 120. Canton v. Thomas, 264 Mass. 457, 459. The contract upon which the action is based provided that Pearson would pay the plaintiff a commission if he negotiated a ten year lease of the premises owned by Pearson’s wife, and it was further stipulated: “In respect to brokerage to you on the additional . . . ten year option given The Kelsey Company, you will be entitled to . . . one per cent, on the rent payable for the said additional . . . ten years, if said option is exercised.” The lease contained no provision that it should not be assigned; it therefore was assignable by The Kelsey Company to its assignee the Waldorf System Incorporated. Patten v. Deshon, 1 Gray, 325, 330. Lamson v. Coulson, 234 Mass.
We are of opinion, however, that on consideration of the evidence in its aspect most favorable to the plaintiff, the jury would have been warranted in finding that Pearson prevented the plaintiff from earning his commission by persuading the lessee, the Waldorf System Incorporated, to forego its right to exercise the option under the terms of the lease, thereby violating his contract with the plaintiff. That such a finding could be made was amply justified by the evidence. It was said by Hammond, J., in Leonard v. Eldridge, 184 Mass. 594, at page 595: “In Sibbald v. Bethlehem Iron Co. 83 N. Y. 378, 384, the following language is used: ‘If in the midst of negotiations instituted by the broker, and which were plainly and evidently approaching success, the seller should revoke the authority of the broker, with the view of concluding the bargain without his aid, and avoiding the payment of commissions about to be earned, it might well be said that the due performance of his obligation by the broker was purposely prevented by the principal.’” The same language was again quoted by Hammond, J., in Cadigan v. Crabtree, 186 Mass. 7, 13. We are of opinion that the principle enunciated in these cases is applicable to the
The jury would have been warranted in finding that the option would have been exercised under the original lease but for the acts of the defendants’ testator. The extension agreement stated, “Waldorf System Incorporated ... at the request of said Charles H. Pearson has withheld and is withholding the giving of notice to that effect within the first six months of 1925.” The jury could have found that Pearson was the active and sole cause of the failure of Waldorf System Incorporated, to give the written notice required under the original lease.
The plaintiff’s exceptions are sustained. As the case should have been submitted to the jury, and as no error appears in the admission or exclusion of evidence, in accordance with the stipulation judgment is to be entered for the plaintiff in the sum of $1,650 with interest at the rate of six per cent from June 1,1926, to the date of judgment.
So ordered.