809 F.2d 156 (1st Cir. 1987), 86-1297, Sampson v. Eaton Corp.

Docket Nº:86-1297.
Citation:809 F.2d 156
Party Name:David SAMPSON, d/b/a Sampson Associates, Plaintiff, Appellee, v. EATON CORPORATION, Defendant, Appellant.
Case Date:January 16, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 156

809 F.2d 156 (1st Cir. 1987)

David SAMPSON, d/b/a Sampson Associates, Plaintiff, Appellee,

v.

EATON CORPORATION, Defendant, Appellant.

No. 86-1297.

United States Court of Appeals, First Circuit

January 16, 1987

Argued Sept. 9, 1986.

Page 157

Victor Bass with whom Arthur P. Kreiger and Palmer & Dodge, Boston, Mass., were on brief, for defendant, appellant.

James R. Senior with whom Conn, Austin, Conn & Senior, Woburn, Mass., was on brief, for plaintiff, appellee.

Before COFFIN, Circuit Judge, WISDOM [*] and ALDRICH, Senior Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

This is a suit for breach of contract by David Sampson, a real estate broker, against Eaton Corporation, an Ohio company, purchaser from The Flatley Company of a sixty-acre parcel of land in Cherry Hill Park in Beverly, Massachusetts. Plaintiff, admittedly, was engaged by defendant to assist in the search for a site, but what this meant was in dispute, other than the fact that any brokerage fee was expected to be paid by the seller. Taking the evidence most favorably to plaintiff, he did briefly "show" the parcel at issue to defendant in January 1983, and included a reference to the Park generally in a notebook furnished defendant, though neither the parcel, nor the Park generally, met defendant's initial requirements. Defendant's interest in the property arose several months later, independently of plaintiff. Flatley paid a full fee, but to another broker, who provided substantial assistance to defendant in site analysis, negotiation, and other aspects of the purchase. In response to plaintiff's claim for damages for the lost opportunity, the jury charged defendant with what, based on the evidence, was approximately one-half of a regular brokerage fee. Defendant appeals following denial of its motions for judgment n.o.v., and alternatively for a new trial. We affirm.

There was no writing, and there were disputes as to what was said and as to what was implied from what was said; also, as to whether plaintiff performed his part of whatever agreement there was. We start with what the jury could have found the agreement to have been.

Plaintiff was the first witness. In response to strikingly leading questions, not objected to, he indicated that he was employed as an "exclusive broker," a term of art in the brokerage business. This occurred in the following manner. After recounting conversations with Timothy Burns, defendant's principal local representative, as to defendant's needs, plaintiff was asked,

Q. And what did Mr. Burns say to you concerning the site search going forward at that time?

A. He asked me if I would coordinate it and act as a buffer and act as their specific agent to identify and research opportunities that would be consistent with their needs.

Q. Did Mr. Burns and yourself have any discussion relative to what an exclusive agent [note that "specific agent" has now become "exclusive agent"] means?

A. Just to the extent that Mr. Burns was concerned that he would be descended upon by people such as myself and others in the industry who are looking to provide this service, and he didn't have the time or the disposition to handle all of these inquiries, and I would do that for him.

Page 158

Q. Did he make reference what he meant by the term "to act as a buffer"?

The witness strayed, but without objection.

A. Part of the brokerage business is--you can call it two sections. One is that you need space and I go out and 5,000 other people go out and try to bring it to you. The other is that you needing space will designate an exclusive agent who will coordinate the search of known space and unknown space in addition to space that might be brought or space or property that might be brought to us by someone else.

Q. And with respect to that conversation [sic], did you and Mr. Burns have discussion relative to how your compensation was to be paid?

A. It was understood that I would be--it was understood and discussed that my relationship would be that I would be getting a brokerage fee from the sellers of the property.

Q. Now, the arrangement that you just talked about, is that one which was common to your business at that time, that type of an arrangement?

A. It is a very common practice in the industry.

Q. Was...

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