Carnes v. Finigan

• Decision Date: 02 March 1908
• Citation: 84 N.E. 324,198 Mass. 128
• Parties: CARNES v. FINIGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 128

84 N.E. 324

CARNES

v.FINIGAN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1908.

Exceptions from Superior Court, Suffolk County; Edward P. Pierce, Judge.

Action by George W. Carnes against Peter W. Finigan. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Jas. A. McGeough, for plaintiff.

William P. Meehan and Charles H. Donahue, for defendant.

LORING, J.

1. We are of opinion that the judge was right in refusing to direct a verdict for the defendant.

The jury were warranted in finding that the defendant employed the plaintiff to find a purchaser for his barroom and promised to pay him a commission equal to 5 per cent. on the purchase money. They were further warranted in finding that the plaintiff gave to one Casey, vice president of the Massachusetts Breweries Company, the name of the defendant's barroom and of two others, knowing that the company was in the habit of advancing the money necessary to make a purchase of a barroom to one in whom the company had confidence, who would buy ale of them; that Casey brought the defendant's place to the attention of Silva; and that the purchase by Silva was made in consequence, that is to say, the company advanced the money to Silva to buy the defendant's place and furnished a guarantor on the lease, and Silva bought his ale of the company.

Casey testified that in what he did he was acting for his company and not as the agent of the plaintiff. Casey was the plaintiff's witness; there was no evidence to contradict this, and it must be taken to have been the fact.

The defendant's contention is that under these circumstances the plaintiff cannot recover even though the jury should find that the plaintiff, in giving the defendant's name to Casey, was the cause of the sale to Silva being made. In support of that contention he relies on Gleason v. Nelson, 162 Mass. 245, 38 N. E. 497. That was a case where the defendant, in a declaration in set-off, sought to hold the plaintiff for a commission. The plaintiff employed the defendant to find a customer for his blacksmith shop in Gardner, Mass. The defendant first brought two men from New Hampshire to see it. He then brought one Eston from Amesbury to see it and asked Eaton to inform any person who might desire to buy such a business that the plaintiff's was for sale. Eaton told one Tuxbury and Tuxbury told Legro, and finally Tuxbury and Legro bought the blacksmith shop. The presiding judge instructed the jury that ‘mere hearsay knowledge of the fact that he wished to sell his property, communicated to the buyer by a third person not employed by Nelson for that purpose, or authorized by him to make the communication, will not entitle him to a commission, although the customer came to the seller indirectly from Nelson.’ This was upheld by this court on the ground that ‘if the broker merely talked about the property with different persons, and one of them of his own accord, and not acting in behalf of the broker, mentioned to another that the property was for sale, and such last-mentioned person thereupon looked into the matter and finally became the purchaser, the agency of the broker in inducing the sale was not sufficiently direct to entitle him to a commission.’

The case at bar is not one where ‘the broker merely talked about the property with different persons and one of them of his own accord’ mentioned to a third person that the property was for sale. Further, what the court meant when they said in Gleason v. Nelson that the intermediary must be one ‘acting in behalf of the broker’ was that in the case then before the court, if the intermediary was not acting as agent for the plaintiff there was not a sufficiently close connection between the act of the broker and the making of the sale to make out that the broker's services were the...