Chisholm v. McCarthy

• Decision Date: 30 November 1949
• Parties: CHISHOLM v. McCARTHY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 72

88 N.E.2d 903

CHISHOLM

v.McCARTHY et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 7, 1949.

Decided Nov. 30, 1949.

Roderick Chisholm, administrator, sued William F. McCarthy and another to recover a broker's commission for procuring a purchaser for realty.

The Superior Court, Brogna, J., rendered judgment for defendants, and plaintiff brought exceptions.

The Supreme Judicial Court Wilkins, J., sustained the exceptions and held that the evidence was sufficient to submit to the jury the question whether the efforts of the broker were the efficient, predominating cause resulting in the sale.W. S. Kenney, Boston, for plaintiff.

C. F. Leary, Newburyport, for defendant.

Before QUA, C. J., and RONAN, WIL SPALDING and COUNIHAN, JJ.

WILKINS, Justice.

The plaintiff's intestate, herein called the plaintiff, originally brought this action of contract to recover a broker's commission for procuring a purchaser for the Lawrence Hotel and nearby cottages at Salisbury Beach. The property, which was owned by the defendant Warner, admittedly was sold by her to one Traynor and one Chadwick, the defendants' principal contention being that another broker was the efficient cause of the sale. The defendant McCarthy is the brother-in-law of the defendant Warner, and assisted in her business. The judge in submitting the case to the jury propounded two special questions: ‘1. Did the defendants of either of them employ the plaintiff to obtain a customer for the property? 2. Were the efforts of the plaintiff the efficient predominating cause resulting in the sale of the property to Traynor and Chadwick?’ The jury answered both questions in the affirmative, and returned a verdict for the plaintiff. The judge ‘refused to affirm’ the answers of the jury to the questions, and under leave reserved entered a verdict for the defendants. To this action of the judge the plaintiff excepted.

There was testimony from the plaintiff that in the summer of 1944 the defendants spoke to him about the hotel; that the defendants requested him to sell the hotel and cottages for $25,000 or the hotel without the cottages for $15,000; that the defendant McCarthy in the presence of the defendant Warner asked the plaintiff what his commission would be; and that the plaintiff replied that it would be five per cent. This evidence warranted the jury's answer to the first question, and it was error not to record it.

On the other question whether the plaintiff could have been found to be the predominating efficient cause of the sales, see Whitcomb v. Bacon, 170 Mass. 479, 49 N.E. 742,64 Am.St.Rep. 317;John T. Burns & Sons, Inc. v. Hands, 283 Mass. 420, 423, 186 N.E. 547, the jury could have found these facts. In March, 1945, Chadwick, accompanied by Mrs. Traynor, while riding on a bus, saw the plaintiff, whom he knew. In the ensuing conversation the plaintiff, learning that Chadwick was giving up another hotel, suggested Salisbury Beach and mentioned the Lawrence Hotel as being for sale. Mrs. Traynor ‘overheard’ the conversation. On April 1, 1945, there was another conversation relative to the Lawrence Hotel in a cafe in Lawrence, at which the three were present. They ‘talked it over pro and con,’ and the plaintiff explained ‘what the set-up was.’ Chadwick said that he knew nothing about Salisbury Beach, never had seen the hotel, and did not think that they would be interested. The plaintiff was the first to mention to Chadwick that the Lawrence Hotel was for sale. At some time Chadwick told Mrs. Traynor that if she was interested in property at Salisbury Beach, she should get some real estate men from Lawrence whom she knew. On April 1, 1945, about a week after Mrs. Traynor ‘overheard’ the conversation on the bus, she telephoned to one Hurley, a friend and a real estate agent in Lawrence, and asked him to show her the Lawrence Hotel and adjoining cottages which she said that she understood were for sale. At some time which does not clearly appear the plaintiff told the defendants that ‘he had a man named Chadwick and a woman named Traynor as customers' for the hotel and cottages, and would call with them in a few days. Later when the plaintiff asked Chadwick to go with him, Chadwick said...