224 Mass. 577 | Mass. | 1916
Under the third count, the only one finally submitted to the jury, the plaintiff declared and the jury expressly found that he (the plaintiff) was employed by the defendants to procure a tenant for the Hotel Oxford.
It was admitted that the plaintiff under his employment introduced to the defendant Matthews one Hurlburt, a person who had in mind the leasing of the Hotel Oxford; that the defendants and Hurlburt discussed the terms of a possible lease; that they agreed as to “the principal points;” that Hurlburt withdrew from the negotiations before there was a final determination of all the questions in issue between them; and that Hurlburt never, in fact, became a tenant.
It was further admitted that on October 26, 1912, the defendants and Hurlburt executed and delivered the one to the other a paper which was drawn by the plaintiff and entitled “Memorandum of Agreement.” The plaintiff contends that this memorandum of agreement, in connection with the acts and declarations of the parties to it, warrants, if it does not require, a finding of fact that Hurlburt was ready, willing and able to take a lease of the Hotel Oxford on the terms of the defendants, and, also, that the defendants came to an agreement with him to accept him as their tenant and began to make out a lease to him.
There was evidence that the memorandum was drafted with great care to express accurately and to cover the main points of their understanding. To provide for points undecided and then under discussion, there was inserted in the agreement, by the plaintiff, a paragraph that read: “It is agreed by both parties that the within agreement is a memorandum of the principal points of their joint understanding and that the lease shall contain the usual and customary covenants for the lease of a hotel although not specified herein, which lease shall be executed by both parties to this agreement on or before November 1, 1912.”
In the memorandum the defendants “agree to lease to the party of the second part [Archie E. Hurlburt] the hotel property known
It is unnecessary to refer further to the contents of the memorandum otherwise than to state that it contained provisions relating to the transfer of the liquor license, to the purchase of the furniture of the hotel, to a proposed alteration of the entrance or entrances, and for the renovation of the building, to the obligation to restore the building in case of fire, and to an abatement of rent during restoration.
There was evidence that, following the execution of the memorandum agreement the defendants congratulated the plaintiff “upon the closing of the matter up so promptly;” that they urged the plaintiff to make a speedy delivery of Hurlburt’s original; that they dictated a letter for the plaintiff to send to Hurlburt wherein it was stated that the defendants “have just decided to accept the contract and have signed both copies;” that Hurlburt admitted that he had signed a contract to lease the Oxford; that Matthews said “he was ready and willing to put the deal through on the basis of the contract if Hurlburt could be prevailed upon.”
As has been stated, the customer, Hurlburt, refused to go on before he and the defendants had come to an agreement upon the terms which were under discussion at the time of the execution of the memorandum of the agreed terms. It is contended by the defendants that the memorandum or contract by its very statement that it “is a memorandum of the principal points of their joint understanding,” uncontrovertibly establishes that it was a preliminary contract only, and that Hurlburt upon the entire evidence could not as a matter of law have been ready, willing and able to become a tenant of the defendants upon terms then the subject of controversy between them. It also is argued that the defendants did not upon the entire evidence accept Hurlburt as a tenant otherwise than upon the implied condition that the terms of the lease should be finally agreed upon.
It is plain, as the presiding judge stated to the jury, “that the memorandum, upon the face of it, does not contain all that the lease was intended to contain.” It is equally plain that there
The plaintiff does not rely upon proof or contend that the defendants and Hurlburt thereafter ever came to an agreement and understanding as to points and terms left undecided and unadopted at the execution of the agreement, but states, as his position, that “it is quite immaterial whether the contract of October 26 was legally binding upon the parties to it or not, and it was also immaterial whether equity would enforce specific performance of it or not. . . . The whole question is whether Matthews and Howe accepted Hurlburt as a person able, ready and willing to-become their tenant on their terms.”
It was entirely possible for the defendants to have said to the plaintiff, as he says in illustration of his position, "Mr. Woods, you have fulfilled your duty; you need not serve us longer; we accept Mr. Hurlburt as a person procured by you, able, ready and willing to become our tenant and to enter into such a lease-as we see fit to draw.” The reported facts do not warrant a finding of fact that the defendants accepted Hurlburt as a tenant, or that Hurlburt ever was able, ready and willing to become a tenant of the defendants under such a lease as the defendants might see fit to draw. To say that Hurlburt was ready and willing to become a tenant upon such terms as the defendants might draw, is to-contradict the written “memorandum of agreement,” and is to say that Hurlburt was without real voice in the apparent negotiations as to the terms of the proposed lease that followed the execution of the “memorandum of agreement” to the time when Hurlburt refused longer to treat with the defendants.
In relation to the continuance of the negotiations between the defendants and Hurlburt, the bill of exceptions states: "The plaintiff contended that no negotiations between the defendants and Hurlburt after October 26 were legally material or competent, and objected to the introduction of any evidence tending to show that such negotiations occurred after October 26. The court having overruled these objections of the plaintiff, the plaintiff did not dispute that certain negotiations between the defend
It would seem to be clear that readiness, willingness and ability to become a tenant upon the defendants’ terms, in the absence of an express understanding otherwise, presupposes and implies that the terms which are to govern the rights of the parties are- or are to be defined, and that so long as such terms are under-discussion there can be in the nature of things neither a readiness nor willingness to become a tenant on the defendants’ terms, or-an acceptance of such a person as a tenant. Fitzpatrick v. Gilson, 176 Mass. 477. Roche v. Smith, 176 Mass. 595. Cohen v. Ames, 205 Mass. 186. Goodnough v. Kinney, 205 Mass. 203. Clark v. Bonner, 217 Mass. 201.
Moreover, if the "memorandum of agreement” be considered neither as a final nor as a preliminary contract, but is to be taken as a memorandum merely, that is to say, as admissions of the facts-therein stated in connection with all the other evidence favorable to the plaintiff’s contention, the entire evidence falls short and does not warrant a jury in finding that Hurlburt was able, ready and willing to become a tenant on the terms of the defendants, or that the defendants were in the position of having accepted him as such. Upon this issue a verdict should have been directed for the defendants.
It is unnecessary to consider the remaining exceptions taken, to the admission or rejection of testimony, as well as to the rulings and refusals to rule of the presiding judge.
The exceptions are sustained and judgment is to be entered, for the defendants under St. 1909, c. 236.
So ordered.