Alphen v. Shadman

Decision Date08 December 1953
Citation116 N.E.2d 252,330 Mass. 608
PartiesALPHEN v. SHADMAN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Frank G. Lichtenstein and George A. Goldstein, Boston, submitted a brief for plaintiff.

Robert W. Meserve, Boston, Harrison F. Lyman, Jr., Boston, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

The plaintiff, a broker, alleges in this action of contract brought to recover a commission amounting to $4,000 that the defendant promised to pay him 'if the efforts of the plaintiff were successful in inducing the Boston Housing Authority to take said land,' and that as a result of his efforts he did induce the authority to take the land by eminent domain. The judge, at the close of the plaintiff's evidence and subject to the exception of the plaintiff, directed the jury to return a verdict for defendant.

There was no error.

There was evidence that in October, 1947, the defendant engaged the plaintiff, a broker, to find a purchaser for the defendant's land or, if possible, to induce the Boston Housing Authority to take the land by eminent domain, and promised, if the efforts of the plaintiff resulted in a taking being made, to pay him a commission of $4,000. The plintiff within a day or two conferred with one Cronin about the land. The latter was a member of the Boston Housing Authority, hereinafter called the board. Cronin became its chairman in January, 1948. Cronin inspected the land with the plaintiff. This was the first time it had been brought to Cronin's attention. He advised the plaintiff to submit the matter officially to the board. The plaintiff also spoke about the land to Carroll, another member. Cronin told the plaintiff in January, 1948, that he felt fairly certain the board would acquire the land by a taking. Cronin mentioned the land at a meeting of the board.

The Boston Housing Authority consisted of five members. See G.L. (Ter.Ed.) c. 121, § 26K, as appearing in St. 1946, c. 574, § 1. They compromised a board of public officers, Johnson-Foster Co. v. D'Amore Construction Co., 314 Mass. 416, 50 N.E.2d 89, 148 A.L.R. 353; Collins v. Selectmen of Brookline, 325 Mass. 562, 91 N.E.2d 747, who must make official decisions, such as are involved in a taking of land, by at least a majority vote taken at a duly constituted meeting of the board. They cannot act separately or individually but must act jointly and collectively in determining the decision of the board. Carbone, Inc., v. Kelly, 289 Mass. 602, 605, 194 N.E. 701; City of Lawrence v. Stratton, 312 Mass. 517, 521, 45 N.E.2d 460; Kenney v. McDonough, 315 Mass. 689, 693-694, 53 N.E.2d 1006; Attorney General v. Town of Ware, 328 Mass. 18, 24, 101 N.E.2d 365.

The burden was upon the plaintiff to show that he had successfully completed the task which he had undertaken in behalf of the defendant and was entitled to receive the promised consideration. In other words, he had to prove that he was the predominating effective cause which brought about the taking of the defendant's land. The plaintiff never attended any meeting of the board. He never communicated with the board with reference to the defendant's land. Cronin could not act as a secret agent of the plaintiff and also as a member of the board. Clover Hill Hospital, Inc., v. City of Lawrence, 315 Mass. 284, 285, 52 N.E.2d 400. There is no contention that he did. Cronin advised the plaintiff to present the matter officially to the board but the plaintiff failed to do so. Cronin never expressed any opinion about the desirability of acquiring the defendant's premises although he told the plaintiff in January, 1948, that he felt fairly certain that the board would make a taking of the land. Cronin never agreed or promised to recommend the taking. He did nothing more than mention the land at a meeting of the board. The record does not disclose what he said. The board voted in July, 1948, to take the defendant's premises as the site for a housing project. No record of any vote was introduced in evidence. Indeed, there was no evidence that Cronin voted in favor of the taking. The plaintiff testified that he spoke to Carroll about the land. Carroll was not called as a witness and the plaintiff did not state what was said between them. The plaintiff also testified that he spoke to one Connelly, the attorney for the board. What was said between them did not appear. Connelly was not authorized to commit the board...

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5 cases
  • Moskow v. Boston Redevelopment Authority
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 17 août 1965
    ...a majority vote given at a duly constituted meeting of the board. They could not act separately or individually. Alphen v. Shadman, 330 Mass. 608, 609, 116 N.E.2d 252. Wrung dry of broad generalities, all that is left of the bill of complaint on the point presently considered is a discussio......
  • Ayer v. Commissioner of Administration
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 23 mars 1960
    ...need not rest upon that fact. Clinton Housing Authority v. Finance Committee of Clinton, 329 Mass. 495, 499, 109 N.E.2d 449; Alphen v. Shadman, 330 Mass. 608, [340 Mass. 598] 609, 116 N.E.2d 252. The reference to bipartisan membership looks in the same direction. We conclude that the statut......
  • Planning Bd. of Springfield v. Board of Appeals of Springfield
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 3 décembre 1958
    ...at a meeting prior to filing the appeal. Decisions of public boards, such as those involving eminent domain takings (Alphen v. Shadman, 330 Mass. 608, 609, 116 N.E.2d 252) and appointments to office (Kenney v. McDonough, 315 Mass. 689, 693-694, 53 N.E.2d 1006), should be made by formal acti......
  • 00-1267
    • United States
    • Massachusetts Superior Court
    • 1 janvier 2000
    ...was held, at which a majority of the City Council voted to delegate authority to Council President to initiate this suit. Alphen v. Shadman, 330 Mass. 608, 609 (1953); Kenney v. McDonough, 315 Mass. 689, 694 (1944). there was a standing issue, it has been cured by the City Council in subseq......
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