Marden v. Howard

242 Mass. 350 | Mass. | 1922

Jenney, J.

The plaintiffs, who are brokers, bring this action to recover for services in obtaining a customer for real estate in Lowell. Three of the defendants, Albert S. Howard, Rowena Palmer, and Albert W. Thompson, are trustees of the Hildreth Estate Trust Association under a declaration of trust. The property whose sale is in question had been conveyed to them, or to their predecessors in trust, to be held in accordance with the declaration. Each of said defendants held shares in the association individually. Thompson, Thomas Nesmith, Jr., and Fisher H. Nesmith, as trustees of the Thomas Nesmith Trust, were the only other beneficiaries.

It is contended by the defendants who are trustees for the Hildreth trust, that they are not individually liable because of the express provisions of the declaration, and that they and the other defendants cannot be held either because they had nothing to do with the plaintiffs’ employment or because the plaintiffs did not secure a customer upon terms satisfactory to the trustees and to the beneficiaries of the Hildreth trust.

The action was referred to an auditor under an agreement that his finding of facts should be final. Pettey v. Benoit, 193 Mass. 233. The case is here upon report of a judge who directed judgment for the defendants upon a motion therefor based upon said report. Rule 31 of the Superior Court (1915). Wheeler v. Tarullo, 237 Mass. 306.

The trustees and shareholders of the Hildreth trust wished to sell the Hildreth building, the title to which was held under the trust. The plaintiffs desired to act as brokers and, as hereinafter set forth, were permitted by the trustees to endeavor to procure a person who was ready, able and willing to buy the property for a price and upon terms satisfactory to the trustees and the beneficiaries of the trust. At the outset they knew who the trustees were and that any offers made to Howard and Thompson would have to be submitted to the beneficiaries; they were informed of the provisions of the declaration of trust and knew who owned the shares therein. The plaintiffs had been advised that Howard was acting solely as trustee and that in fact he had no beneficial interest in any shares, as those standing in his name were held as trustee and not as his own. They likewise were informed that Rowena Palmer, one of the trustees and a large shareholder, was abroad, that her son, Jackson Palmer, was acting as her attorney, and that Fisher H. Nesmith, one of the trustees of the Nesmith trust, also was abroad.

Howard, Thompson, Thomas Nesmith, Jr., and Jackson Palmer knew that the plaintiffs were endeavoring to find a purchaser for the Hildreth building and understood that they were to receive a commission if they succeeded. No price had been fixed, and the terms of sale had not been settled.

The plaintiffs produced as a customer Edwin J. Dreyfus, who made a written proposition to buy the property subject to mortgages aggregating $250,000 and existing leases, to pay $50,000 in cash, and to give a mortgage for $100,000 subject to the prior mortgages. This offer was not addressed to any one but was delivered to Howard, who said in substance that he would submit it to the beneficiaries of the trust. Thompson, Thomas Nesmith, Jr., and Jackson Palmer were informed of this proposition and they understood that Howard was authorized to act for them in making a reply.

A question arose as to the liability of the trust to pay an excess profits tax in case of the sale of the property and a suggestion was made by Jackson Palmer to Howard and Thomas Nesmith, Jr., that the shares in the trust be transferred rather than the property itself. Howard, in the presence of Palmer, wrote the attorney for Dreyfus that all parties interested in the Hildreth trust had signified their willingness to put through the sale, adding, “In other words, the substance of the transaction is approved ... it is now a question of method.” Pursuant to a suggestion contained in this letter, Howard, Thompson, Palmer, Thomas Nesmith, Jr., and Fisher H. Nesmith, who had then returned, met Dreyfus, his attorney, and the plaintiffs. At this conference it was stated by Howard and Thompson that the trustees and beneficiaries of the Hildreth trust had been advised that they would be subject to a large excess profits tax if they sold the real estate directly to Dreyfus; that they had been advised not to sell the building but were willing to sell the shares of the trust estate on the terms of the offer; that for this reason they did not want to sell the building directly. They asked the attorney for Dreyfus if his client would be willing to take an assignment of the shares. He replied that he preferred not to do that and suggested that the trust be dissolved, and Fisher H. Nesmith proposed a plan for forming a corporation to act as trustee. Nothing was decided upon and the parties separated with the understanding that the matter was to be further considered and if possible new plans devised for accomplishing the transfer of the building to Dreyfus in a manner which would not involve the payment of an excess profits tax. All understood that another meeting was to be held.

Before this meeting Thomas Nesmith, Sr., one of the beneficiaries under the Nesmith trust, had made known to Thompson and to Fisher H. Nesmith that he objected to a sale to Dreyfus for the price offered, and had notified the trustees that he would endeavor to prevent such sale by legal proceedings. Shortly after-wards, the trustees received from other sources offers for the shares, one of which was accepted and carried through. No further conference with Dreyfus or his attorney was ever held, although they were informed of the offers which had been made and given an opportunity to meet them. Dreyfus was ready, able and willing to take a deed of the property at the price and upon the terms named in his offer; he never refused to take the shares in the trust instead of a conveyance, but he did not make an offer to buy them.

The auditor’s conclusion is as follows: “If upon the foregoing facts the plaintiffs can recover as a matter of law, I find they are entitled to receive the sum of $10,000, with interest from April 17, 1920, when payment was demanded.”

We assume in accordance with the plaintiffs’ contention, that the true construction of this finding is that the plaintiffs are entitled to judgment if liability can be posited on the facts set forth in the report. The auditor’s final conclusion stands upon the same footing as the verdict of a jury when there is an exception to a refusal to direct a verdict for the defendant. Peru Steel & Iron Co. v. Whipple File & Steel Manuf. Co. 109 Mass. 464.

Prior to the writing of Howard’s letter, it is clear that the proposai had not been accepted, and in the absence of an agreement as to the price and terms upon which the defendants were willing to sell, the making of the offer was not sufficient to entitle the plaintiffs to recover. That letter did not constitute an acceptance. It indicated a willingness to sell according to the substance of the offer, but reserved the consideration of the methods and details of such transfer and expressly provided for a conference for the purpose of discussing them. When the parties met, the defendants did not indicate that the terms of the proposition were acceptable; on the contrary, they stated they did not want to sell the building directly but would consent to a sale of the shares of the trust. This counter propositiom was not accepted and nothing more was ever done. It is clear that the facts found do not tend to prove that the plaintiffs procured a person ready, able, and willing to purchase upon terms which were satisfactory to the defendants. No acceptance was shown, only a willingness to consider and approve if certain requirements were met. Clark v. Bonner, 217 Mass. 201. Bruce v. Meserve, 228 Mass. 463. Cesana v. Johnson, 232 Mass. 444. Doten v. Chase, 237 Mass. 218. Ballou v. United Button Co. 241 Mass. 457.

The employment of the plaintiffs was not exclusive and there is nothing to show that the sale of the stock was with the intent to defraud them. The defendants had a right to get another customer. Cadigan v. Crabtree, 179 Mass. 474; S. C. 186 Mass. 7. Smith v. Kimball, 193 Mass. 582. Kimball v. Hayes, 199 Mass. 516.

There was no error in the denial of the motion to recommit the case to the auditor for additional findings. No suggestion is made that the subsidiary facts were not fully and correctly determined; so far as justified by them, the ultimate findings referred to in the motion have been considered as made. This is the effect of the construction placed upon the conclusion herein-before quoted of the auditor’s report. Adams v. Dick, 226 Mass. 46. Adams v. Hayden, 236 Mass. 454, 459.

It is unnecessary to consider the other grounds of defence upon which the defendants rely, or to state the facts upon which they are based.

In accordance with the terms of the report, judgment is to be entered for the defendants.

So ordered.