Maloon v. Barrett, 192 Mass. 552

192 Mass. 552 | Mass. | 1906

Loring, J.

The defendant’s first contention is that the plaintiff would not have been entitled to a commission had there been no direction by the defendant not to advertise. It is stated in the agreed facts that the customer “ went to the defendant solely as a result of said advertisement.” That would have been decisive in favor of the plaintiff had there been no direction not to advertise the property. Gleason v. Nelson, 162 Mass. 245. Dowling v. Morrill, 165 Mass. 491. Pratt v. Burdon, 168 Mass. 596. French v. McKay, 181 Mass. 485.

. The difficulty in the case at bar arises from the fact that the defendant told the plaintiff not to advertise. The plaintiff was employed to find a customer, but was instructed not to use an advertisement as a means of accomplishing that which he was employed to effect. For that reason the case does not come within cases like Boston Ice Co. v. Potter, 123 Mass; 28, Pittsburgh Plate Glass Co. v. MacDonald, 182 Mass. 593, and Smith v. Wenz, 185 Mass. 229.

Moreover it is agreed that the plaintiff had forgotten the restriction not to advertise. That is in substance -an agreement that he acted in good faith, and for that reason this case does not come within Sipley v. Stickney, 190 Mass. 43, 44.

It has been urged on behalf of the defendant, that, inasmuch as the plaintiff’s right to sell was not exclusive of the defendant he had a right to sell to Arbing without paying the plaintiff a commission. That is hardly an accurate statement of his rights. To be accurate, what the defendant would have had a right to do was to sell the property to Arbing without paying the plaintiff a commission if he had secured Arbing as a customer without the aid of the plaintiff. When Arbing went to the defendant solely as a result of the plaintiff’s advertisement and informed the defendant that he had “ seen the advertisement and that he desired to purchase the property,” the possibility of the defendant’s securing Arbing as a customer without the plaintiff’s aid came to an end, and the defendant knew it. Whether the defendant was or was not harmed by that possibility being ended by the plaintiff’s unauthorized act in advertising the property is and always will be a matter of conjecture. The defendant has not proved, and cannot prove, that had it not been for the unauthorized advertisement he would have secured Arbing as a customer. .

When the possibility of the defendant’s securing Arbing as a customer through his own (the defendant’s) efforts was ended by the plaintiff’s unauthorized advertisement, one of two results followed: Either (1) the defendant could sell to Arbing, although secured by the plaintiff’s efforts, because the possibility of the defendant’s securing Arbing as a customer had been brought to an end by the plaintiff’s using an unauthorized means, that is to say, the defendant was in the same position that he would have been in had he in fact secured Arbing as a customer; or (2) the defendant (not having secured Arbing as a customer through his own efforts) could not sell to him as his (the defendant’s) customer. In the latter case the defendant would not be bound to treat with Arbing as a customer, as he would have been bound to do had the means used by the plaintiff been authorized; he could have refused to recognize him as a customer because obtained by the use of means which he forbade the use of. But in the latter case, if he elected to deal with him he dealt with him as a customer procured by the plaintiff, since he was in fact secured by the plaintiff, and not as a customer who became such through his own efforts; and having elected to deal with him he must be held to have ratified the means used by the plaintiff to secure him. That is to say, it is a case where the defendant had to accept or reject the plaintiff’s action as a whole. He could not ratify it in part and repudiate it in part. Suit v. Woodhall, 113 Mass. 391. Coolidge v. Smith, 129 Mass. 554. Eaton v. Littlefield, 147 Mass. 122, 125.

In the opinion of a majority of the court it is not possible to say that the defendant had a right to deal with the customer in fact secured by the plaintiff, although by unauthorized means, as if he had been secured by his own efforts, and the second is the true view of the case.

The defendant having elected to deal with Arbing, the entry must be

Judgment on the finding. .