There is nothing involved in this case beyond the application of principles, which were recently discussed at length in Fitzpatrick v. Gilson, 176 Mass. 477.
The suit was brought by the assignee of one Stimpson to recover commissions earned by him for the exchange of certain land owned by the Newton Land and Improvement Company. The judge directed a verdict for the defendants, and the case is here on exceptions by the plaintiff. The plaintiff admits, in his brief, that he has not made out a case against the defendant Morse.
On the evidence the jury were warranted in finding that Stimpson was successful in procuring from one Leland a written agreement to exchange his houses for the lands of the Newton Land and Improvement Company on terms, which were accepted by the defendants Weeks and Parker.
The principal defence set up by Weeks and Parker, is that the land was the land of the Newton Land Company; that Parker was the president and general manager of the company, and had no authority to sell the company’s land or to bind it in any way; that the trustees alone had that right; that Weeks was only one of two trustees; that the offer was not accepted by the other trustee, and therefore no commission was earned.
But if a principal employs a broker to get him a purchaser of certain property and the broker procures a purchaser, who is willing to buy on terms which are accepted by the principal, the right of the broker to his commission is not affected by the fact, if it is a fact, that the principal was only a part owner of the land to be sold. The fact that the principal was only a part owner is material on the question whether he did employ
In the case at bar, there was evidence “ that Stimpson did not know in whom the title to the Hunnewell Hill land stood and that he did not care; that his dealings were mostly with Parker, although somewhat with Weeks; that he dealt with the defendants Parker and Weeks as principals; that he believed Parker was a trustee, and that Parker told him that he was a trustee and that it was n’t necessary to deal with Morse and Weeks; that on the caption of a letter written by Parker to Stimpson some time before the talk concerning the India Street deal, were printed the words, ‘Jonathan A. Lane, George W. Morse and John W. Weeks, Trustees of the Newton Land & Improvement Company ’; that Stimpson afterwards understood that Lane had died and supposed perhaps that Parker had taken Lane’s place.” This evidence, coupled with the evidence that Parker and Weeks undertook to close the trade by word of mouth, without consulting Morse, warranted a finding that they jointly, or that one of them alone, were the persons who employed the plaintiff to get a purchaser of the land in question.
The other defence set up is that the land to be sold by the defendants was described as “ two hundred and ninety thousand feet of land (290,000) ft. to be taken from ” a parcel of land containing five hundred thousand square feet, “ said 290,000 feet to be divided as to front and back lands from the whole parcel as nearly equal as possible.” The defendants contend that the
If the plaintiff made out a case against Weeks and Parker jointly, or either one alone, he had a right to go to the jury, Pub. Sts. c. 171, § 5; and upon his discontinuing as against the defendant Morse, he is entitled to a new trial.
¡Exceptions sustained.