Thwing v. Clifford

• Citation: 136 Mass. 482
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 02 February 1884
• Parties: Almon Thwing & another v. Alonzo P. Clifford

136 Mass. 482

Almon Thwing & another v. Alonzo P. Clifford

Supreme Court of Massachusetts

February 2, 1884

Suffolk. Contract on an account annexed for advertising and selling a lodging-house. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows:

There was evidence tending to show that the plaintiffs were employed as brokers by the defendant; that they agreed to inform the defendant if they sent a purchaser, and advertised the premises, and in consequence one Ellis went to the plaintiffs' office and told them he wanted such premises for a friend; that after some conversation the plaintiffs informed Ellis about the premises, and then agreed with him that, if he got his friends to purchase the place, he should have part of the commission; that the plaintiffs gave Ellis their business card, and Ellis went to examine the place which was shown him by the defendant, and then arranged that he would send for a Mr. and Mrs. Platt, who were the persons who wanted the place; and that Ellis told the defendant that no broker had anything to do with the trade, and on that understanding a price was named.

There was also evidence tending to show that Ellis told the defendant that he came from the plaintiffs; and that other parties were sent to the defendant by the plaintiffs.

Mr. and Mrs. Platt purchased the premises; and the plaintiffs brought suit, with an agreement with Ellis that he would bear his share of the expense of the suit.

The defendant asked the judge to rule that, if the jury believed that Ellis told the defendant that he came from no broker, or that no broker had anything to do with it, then the relation of the parties was such, by reason of the agreement to share the commissions, that the plaintiffs could not claim a commission. The judge refused so to rule, but instructed the jury that it was for them to say whether Ellis was in the employ of the plaintiffs, and was their agent to such an extent that his statements, made to the defendant, would be binding upon the plaintiffs; but that, if Ellis was not in the employ of or an agent for the plaintiffs, his statement to the defendant that no broker had anything to do with the matter would not prevent the plaintiffs from recovering although they had agreed with Ellis to give him a share of the commission if a sale should be made to Mr. and Mrs Platt.

The defendant's counsel, at the beginning of his argument to the jury, requested, verbally, the judge to instruct the jury as above stated. The judge at that time did not indicate what his ruling would be, but during his charge stated to the jury the instruction asked for by the defendant, and said, "I shall not give...