Wheelock v. Zevitas

| Mass. | Jan 5, 1918

Carroll, J.

The plaintiff seeks to recover for services performed in obtaining a lease of a certain building for the defendants and in securing tenants for the same. The declaration is in two counts, the first on the account annexed and the second upon a quantum meruit. There was a verdict for the plaintiff.

The defendants asked the trial judge to rule (1) “Upon all the evidence the plaintiff is not entitled to recover,” (2) “The plaintiff is not entitled to recover upon any count of this declaration,” and (3) “The plaintiff is not entitled to recover upon the quantum, meruit count of his declaration.” These requests for rulings were refused and the defendants excepted. In answer to a specific question the jury found that the plaintiff was not a partner of Fischel; and to the question “Was the payment of a commission to" the plaintiff upon the Braus lease dependent upon a condition which had not been performed prior to July 31, 1914, [the date of the writ] ? ” they answered in the negative, and found for the plaintiff.

Braus was the lessee of the premises 33, 35, 37 Tremont Street, Boston. The largest item in the account was for a commission in obtaining this lease for the defendants. The defendants contend that Fischel was a partner of the plaintiff.

To prevent the plaintiff’s recovery because of the alleged partnership with Fischel, it was not enough to show that they held themselves out as partners and could be considered such by their creditors. It was necessary to show that they were partners between themselves and not merely partners as to third persons; that Fischel was in fact a partner of the plaintiff and entitled with him to bring the action. As stated by Chief Justice Shaw in Bishop v. Hall, 9 Gray, 430, 432, “It is not enough that parties held themselves out or suffered themselves to be held out as partners; this might be sufficient to charge them as defendants, either in contract, or for negligence or want of skill; but the same proof, when partnership was set up to prevent one from recovering, would wholly fail of establishing it.” Whether they were in fact partners depended upon the agreement of the parties. McMurtrie v. Guiler, 183 Mass. 451" court="Mass." date_filed="1903-05-23" href="https://app.midpage.ai/document/mcmurtrie-v-guiler-6428238?utm_source=webapp" opinion_id="6428238">183 Mass. 451. And as the evidence was conflicting, this question was properly submitted to the jury. Adamson v. Guild, 177 Mass. 331" court="Mass." date_filed="1901-01-02" href="https://app.midpage.ai/document/adamson-v-guild-6427289?utm_source=webapp" opinion_id="6427289">177 Mass. 331.

There was some evidence that the plaintiff, acting as a real estate broker, contracted with the defendants to procure for them the Braus lease for a commission of $1,116.72, and two other leases to other tenants, one for a commission of $839.38 and one for a commission of $160; that these leases were obtained; that the plaintiff performed his part of the contract, and the defendants refused to pay him. Upon establishing these facts the plaintiff could recover on the account annexed. Lovell v. Earle, 127 Mass. 546" court="Mass." date_filed="1879-10-27" href="https://app.midpage.ai/document/lovell-v-earle-6419757?utm_source=webapp" opinion_id="6419757">127 Mass. 546. There also was evidence tending to show that the plaintiff agreed to secure the Braus lease for the defendants, but was not to receive the agreed commission of $1,116.72 until the premises were rented for “as much or more than you pay Braus,” and that the plaintiff was to assist by securing a sublease for the defendants without compensation. It was the contention of the plaintiff that he fully performed his agreement and that the defendants refused and neglected to co-operate with him; that “if he [the plaintiff] had been let alone in the management of the estate and had had a little co-operation from the defendants,” the premises could have been rented for $25,000 a year. There was other evidence tending to show that the defendants, by their lack of diligence and failure to aid the plaintiff, prevented the estate from returning the amount stated. Upon these facts the plaintiff had the right to go to the jury on the quantum meruit count and recover the value of his services. See Gillis v. Cobe, 177 Mass. 584" court="Mass." date_filed="1901-02-27" href="https://app.midpage.ai/document/gillis-v-cobe-6427352?utm_source=webapp" opinion_id="6427352">177 Mass. 584; Hayward v. Leonard, 7 Pick. 181.

There was no error in refusing to order the plaintiff to elect upon which count he would proceed. The counts were not inconsistent and with the conflicting evidence on each count, it could not be known which view of the case the jury would accept. Young v. Hayes, 212 Mass. 525" court="Mass." date_filed="1912-09-11" href="https://app.midpage.ai/document/young-v-hayes-6431923?utm_source=webapp" opinion_id="6431923">212 Mass. 525, 532.

The defendants were desirous of controlling the leased premises and securing the Braus lease for purposes connected with their business. After the defendants had accepted the offer of Braus, the plaintiff, on inspecting the lease, found that Braus was paying a yearly rental of $14,000 and taxes. There is no evidence that this fact was made known to the defendants. While a broker must act in perfect good faith and disclose to his employer every material fact known to him, it does not appear that the rent paid by Braus was a fact of material importance to the defendants; and even if it were such, the defendants did not call the court’s attention to this question. They asked for no ruling relating to this aspect of the case and did not' except to the rulings given. This contention, therefore, is not now open to the defendants.

We find no error of law in the conduct of the trial.

Exceptions overruled.