206 Mass. 520 | Mass. | 1910
The main facts in this case are as follows:
In 1907 the plaintiff and the defendant’s husband had a conversation about the sale of the defendant’s land and buildings where the husband carried on his business as a blacksmith. The plaintiff testified that the husband then employed him as a broker to get a customer for them at the price of $15,000. The husband testified that the plaintiff wanted him to put a price on them at that time; that he refused to do so, but said, “ If any one gave me an offer of $15,000 I would consider it with my wife.” In March, 1909, one Metcalf, an officer of the Farr Alpaca Company, “ came to ” the plaintiff to see if he had any land for sale fit for a manufacturing site for the Barlow Manufacturing Company. The Barlow Company was then occupying as tenant some land of the Alpaca Company, on which the Alpaca Company wished to construct a building for its own use, and the Alpaca Company wanted a lot for the Barlow Company to induce the Barlow Company to surrender the lease and move away. The plaintiff showed him the defendant’s lot and then called upon the defendant’s husband to see if the price remained unchanged. He was told by the husband that the price was unchanged. Thereupon he gave Mr. Metcalf $15,000 as the price. In July Metcalf told him that his company would like an option on the land at that price, but that he did not want the Alpaca Company to be known in the matter, as it would bring all the real estate brokers down on them. Whereupon the plaintiff prepared an option running to himself for $15,000 and took it to the husband, explaining to him (the husband) that the option ran to him (the plaintiff) because his customer did not want to
1. The second ruling asked for was rightly refused.
The defendant’s husband testified that he bought the land here in question “ and put it in my wife’s name ”; that he put up the building which stood on it, occupied it for his business, and “ never paid any rent for the property to my wife or anything of that kind.” That he paid taxes, water rates, expenses
2. The sixth ruling asked for was rightly refused. We are of opinion that although the jury could take the view just stated (that the defendant was the holder of the legal title only and left the whole management of the land and building to her husband) they could take the view that it was really a gift to the wife (see for example Cooley v. Cooley, 172 Mass. 476, 477; Lufkin v. Jakeman, 188 Mass. 528, 530). If they did take that view, the fact that they were husband and wife warranted a finding that the husband told his wife of the arrangement which he testified that he made in her behalf on July 23, 1909, with the plaintiff, for the usual commission of two per cent if the deal went through. If he did, there was evidence of a ratification. The defendant did not notify the plaintiff that she repudiated it. See in this connection Reid v. Miller, 205 Mass. 80. The jury were at liberty to refuse to credit the testimony of the defendant and her husband that she was not told of the plaintiff’s employment. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314.
3. The defendant has contended that there was no evidence of bad faith within the rule laid down in Cadigan v. Crabtree, 186 Mass. 7.
The defendant’s contention is that there could be no bad faith because the plaintiff did not disclose the name of his customer until after the defendant had revoked his authority. And she relies in this connection on Smith v. Kimball, 193 Mass. 582, where the broker did not at any time disclose his customer’s name.
But that contention is not well founded. The plaintiff’s testimony was: That about a week after the date of the option the defendant’s husband telephoned him that his wife “ didn’t care about selling, and he said, ‘ I am afraid we won’t be able to go along with it by the way she feels at present.’ ” That he went to the husband’s office the next day and the defendant then told him that his wife had been looking over his books, that she found that if he moved to the Barlow lot he would lose $800 to $1,000 of business (as stated in the beginning of this opinion), and ended with these words: “ She says she won’t do any business at present.” That he, the plaintiff, then said he was sorry because his customer was the Alpaca Company, and that they wanted it for the Barlow Company, “ who occupy a property that they wish to occupy, a property they wish to occupy themselves ” ; and that he (the plaintiff) then added, “I don’t know any similar concern that would be willing to pay you $15,000 for the property,” and the defendant ended the conversation with the remark, “I admit the price is good, and everything is satisfactory as far as you and I are concerned, but if my wife won’t sign the deed, what can I do?”
This was not (or at any rate could be found not to be) a revocation of the plaintiff’s authority to sell, but a refusal to sell for the price of $15,000, which up to that time had been the defendant’s price.
There was abundant evidence of a revocation in bad faith, and the eleventh request for a ruling was rightly refused, since it assumed as a fact that the disclosure of the customer was made after the revocation of the plaintiff’s authority.
4. The defendant took an exception “ to that part of the charge which was to the effect that if the authority of the plaintiff was revoked not in good faith, it was a prevention and the plaintiff might recover just as if he had found a purchaser who offered $15,000.”
We are of opinion that this part of the charge was too favorable to the defendant. Where the principal revokes the broker’s authority in bad faith in order to secure to himself the fruits of the broker’s work without paying him for it, the revocation, being in fraud of the broker’s rights, is of no effect so far as those rights and the trade subsequently made are concerned. In such a case what is subsequently done is in legal contemplation done while the broker’s authority remains unrevoked. If the plaintiff’s authority in the case at bar was revoked in bad faith, the plaintiff was entitled to two per cent on the price paid ($18,000 and the old building material) not two per cent “ as if he had found a purchaser who offered $15,000.” Where a defendant prevents performance by the plaintiff, the plaintiff can sue, but if he sues, the amount which he is entitled to recover is not the same as if he had performed. See for example Barrie v. Quinby, 206 Mass. 259, 267, 268.
5. Where the evidence warrants the jury in finding that the negotiations had progressed to such a point that a revocation of the broker’s authority (if his authority is revoked) is made in bad faith, the question of the plaintiff’s being the efficient cause of the trade subsequently made does not arise. The fact that through the broker’s efforts the negotiations have reached the point where it can be found that his authority, if revoked, has been revoked in bad faith, is of itself a finding that he found the customer for his principal if his principal finally agrees on a price with the customer found by the broker. It is no part of the broker’s duty to see to the making of the contract between his principal and the customer found by him. Fitzpatrick v. Gilson, 176 Mass. 477, 479.
The exception to the refusal to give the fifth ruling asked for must be overruled.
6. The judge told the jury that the only purpose for which they could consider (1) the evidence that the husband told the plaintiff that there was no question but that the wife would sign the option because she generally did what he asked her, and (2) the evidence that the husband told the plaintiff that his wife had been looking over his books and had found out that he would lose $800 to $1,000 by moving his business to the Barlow lot, as he then proposed to do, was “ for the purpose of contradicting Mr. Casey’s testimony and affecting his credibility.” We are of opinion that these matters were material and therefore that the contradictory statements were competent on the witness’s credibility.
Exceptions overruled.