Smith v. Kimball

193 Mass. 582 | Mass. | 1907

Sheldon, J.

Taking the most favorable view of the evidence for the plaintiff, the jury might have found that he, having learned in the autumn of 1902 that the Hotel Sanford might be bought, called upon the defendant Otis Kimball, who it is admitted had full authority to act for the other defendant, introduced himself as a real estate broker, and said that he thought he might sell the property for Mr. Kimball. He subsequently talked about the property with one W. G. Lincoln, who represented a possible purchaser, Alfred V. Lincoln, and obtained some tentative offers from him, though never himself meeting Alfred Y. Lincoln, nor even knowing except by his own inference who the prospective purchaser was. These tentative offers, or casual offers, as they were called, he communicated to Mr. Kimball, and got from him information about the property, its rentals and expenses, and obtained first one price and then other lower prices for the property, and communicated these to W. G. Lincoln. These negotiations continued until the summer of 1903. ' In the autumn of 1903 they were resumed. The plaintiff submitted to Mr. Kimball a “tentative proposition” of $180,000 for the property in behalf of the proposed purchaser, and received from Mr. Kimball a proposed price of $185,000; but no agreement was reached, and no nearer approach to a completed sale ever was,made through the plaintiff. Mr. Kim-ball said to the plaintiff, “Bring me an offer in writing, and perhaps we can get together.” The plaintiff told this to W. G. Lincoln about the middle of November, and said that his clients would have to hurry if they were going to purchase the property ; that if there was anything going to be done it would have to be done within two or three weeks; and W. G. Lincoln said that he would tell his client. The prospective purchaser always was spoken of between the plaintiff and W. G. Lincoln as the latter’s client. Afterwards W. G. Lincoln told the plaintiff that he had submitted the matter to his client, but had no definite information ; and the plaintiff testified that so far as he knew the Lincolns seemed inclined to let the matter drop there. Some time in the autumn of 1903, apparently either early in November or two or three weeks before the property actually was sold, Mr. Kimball said to the plaintiff: “ Mr. Smith, if you are going to do anything with your client, you will have to get right at it, because in two or three weeks my suit for damages against the elevated will come up and then the matter will be off, and we can’t do any business.” At one place in his testimony the plaintiff said that this was just before the actual conveyance of the property ; but the circumstances all show that he did not mean by this that the time named by Mr. Kimball had not expired before the sale, nor is this alleged in argument. On cross-examination he stated that after Kimball told him that unless his clients hurried and got around within two or three weeks the negotiations would be off, his client did not come around through him, and that he was not the one who completed the negotiations. He also said in one part of his testimony that his purchaser never was able to give a definite price, and in another part, that he had a definite offer of $175,000; but nothing ever came of any such offer.

In this state of affairs, Alfred V. Lincoln procured one Mr. Wilson, a former employer of his, to introduce him to Mr. Kim-ball, and they agreed upon a price of $182,500 for the property. It was conveyed to A. V. Lincoln by the defendants, for that price, on December 18,1903. The purchaser and the seller each gave to Wilson $500.

The only agreement that could be found to have been made between the plaintiff and the defendants was that the former should have a commission if he procured a sale for the latter. On the evidence, he had wholly failed to do so, and had been discharged by Mr. Kimball. After his failure, through the purchaser’s own efforts, Mr. Kimball not knowing who the plaintiff’s customer was, the parties met and themselves agreed upon the terms of a sale. Leonard v. Eldridge, 184 Mass. 594. The negotiations between the plaintiff and the Lincolns had come to an end; in the language used by the plaintiff in testifying, “ they evidently seemed inclined to let the matter drop so far as he knew.” There had been no general, and far less any exclusive employment of the plaintiff by the defendants. They had full right to make sale of this property to any one whom they pleased, regardless of what efforts the plaintiff might have made; nor can the plaintiff in such a case recover anything for his unsuccessful efforts. Cadigan v. Crabtree, 179 Mass. 474. The fact that the plaintiff had failed to persuade the purchaser to take the property at one price, is not of itself evidence which would justify a finding that his services were the operating and efficient cause of a subsequent sale at a somewhat lower price which yet was higher than the plaintiff had succeeded in obtaining. Nor is there any question possible as to the defendants’ right to terminate the plaintiff’s employment. They could have done this, acting in good faith, even if they had known who the plaintiff’s customer was, and then had proceeded to deal with him themselves. Cadigan v. Crabtree, 179 Mass. 474; S. C. 186 Mass. 7.

There is no ground on which it can be said that the defendants in throwing over the plaintiff and themselves dealing directly with A. V. Lincoln acted in bad faith within the rule of Sibbald v. Bethlehem Iron Co. 83 N. Y. 378, as quoted in Cadigan v. Crabtree, 186 Mass. 7, 13. French v. McKay, 181 Mass. 485. Dowling v. Morrill, 165 Mass. 491. They could not have intended to deprive the plaintiff of his commission; for they did not know that Lincoln had been his customer.

We have said nothing about the contention of the defendants that the purchase really was made in the interest of the Boston Elevated Railway Company; for we agree with the counsel for the plaintiff that the ordering of a verdict cannot be supported on this ground.

The Superior Court rightly ruled that on the evidence the plaintiff was not entitled to recover.

Exceptions overruled.