O'Connell v. Casey

• Decision Date: 19 October 1910
• Parties: O'CONNELL v. CASEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 520

92 N.E. 804

O'CONNELL v. CASEY.

Supreme Judicial Court of Massachusetts, Hampden.

October 19, 1910

Defendant requested the court to charge:

'(2) There is no evidence that James J. Casey was authorized by Mary Casey to act as her agent in the employment of plaintiff.'

'(5) In order to recover, plaintiff must show that he was the efficient and predominating cause of the trade actually made.

'(6) There is no evidence that defendant subsequently ratified the employment of the plaintiff by her husband, James J Casey, if such employment was made.'

'(11) Plaintiff, by disclosing to Mr. Casey at the time of the termination of Mr. O' Connell's employment, did not, and could not, preclude Mrs. Casey from afterwards acting in good faith and not in fraud of plaintiff making a trade with the same purchaser on terms more advantageous to herself, without becoming liable to him for a commission.'

COUNSEL

James O'Shea and James B. Carroll, for plaintiff.

R. P. Stapleton, for defendant.

OPINION

LORING J.

The main facts in this case are as follows:

In 1907 the plaintiff and the defendant's husband had a conversation about the sale of the defendant's land and buildings where the husband carried on his business as a blacksmith. The plaintiff testified that the husband then employed him as a broker to get a customer for them at the price of $15,000. The husband testified that the plaintiff wanted him to put a price on them at that time; that he refused to do so, but said, 'If any one gave me an offer of $15,000 I would consider it with my wife.' In March, 1909, one Metcalf, an officer of the Farr Alpaca Company, 'came to' the plaintiff to see if he had any land for sale fit for a manufacturing site for the Barlow Manufacturing Company. The Barlow Company were then occupying as tenants some land of the Alpaca Company, on which the Alpaca Company wished to construct a building for its own use, and the Alpaca Company wanted a lot for the Barlow Company, to induce the Barlow Company to surrender the lease and move away. The plaintiff showed him the defendant's lot, and then called upon the defendant's husband to see if the price remained unchanged. He was told by the husband that the price was unchanged. Thereupon he gave Mr. Metcalf $15,000 as the price. In July, Metcalf told him that his company would like an option on the land at that price, but that he did not want the Alpaca Company to be known in the matter, as it would bring all the real estate brokers down on them. Whereupon the plaintiff prepared an option running to himself for $15,000 and took it to the husband, explaining to him (the husband) that the option ran to him (the plaintiff) because his customer did not want to be known in the matter. At that time the husband asked what the plaintiff's charge would be in case the deal went through, and the plaintiff told him the usual 2 per cent. commission. To this the husband said that that would be satisfactory. As to this conversation there was no real dispute. The husband testified to it in substance. The husband then said: 'This property is my wife's; she is in the West; I will send the option to her.' The option was dated July 23d, the day of this conversation. In this conversation the husband said that he made it a condition of the sale that the plaintiff should procure for his business of a blacksmith a property known as the Barlow lot. This Barlow lot had nothing to do with the Barlow Manufacturing Company. The plaintiff accordingly procured an option on this Barlow lot. Before that option had run out the defendant returned to Holyoke and refused to sign the option. The plaintiff testified that the husband told him that the reason why the defendant refused to sign the option was because she had been looking over his books and thought that if he moved his blacksmith business up to the Barlow lot he would lose local business which he then had to the amount of $800 to $1,000 a year. The plaintiff then said that his customer was the Alpaca Company, who wanted the defendant's land for the Barlow Company, who were tenants of land belonging to the Alpaca Company which the Alpaca Company wished to occupy themselves, and that no one else would pay as much. To which the husband answered: 'If my wife won't sign the deed, what can I do?' This was about the middle of August. On August 29th the husband and Metcalf agreed (subject to ratification by the defendant and the directors of the Alpaca Company) to a sale to that company for $18,000 and as much of the material of the building then occupied by the Barlow Company, which was to be torn down, as the husband should select for a new blacksmith shop. This was carried through on September 3d.

1. The second ruling asked for was rightly refused.

The defendant's husband testified that he bought the land here in question 'and put it in my wife's name'; that he put up the building which stood on it, occupied it for his business, and 'never paid any rent for the property to my wife, or anything of that kind'; that he paid taxes, water rents, expenses for repairs, painting, plumbing, and insurance, out of his own money; 'I did not always consult my wife about these things, sometimes I did;' that all the negotiations for the sale to the Alpaca Company were conducted by him, and the $18,000 received from it went into his bank account. There was no evidence that the defendant ever did anything about the premises beyond her testimony and that of her husband that she refused to sign the $15,000 option and after some time finally consented to sell for $18,000 and the old building material. It is significant in this connection that while the husband told the plaintiff that it was for his wife to decide upon the acceptance of the $15,000 option, and finally disposed of that offer by the remark, 'If my wife won't sign the deed, what can I do?' He testified on the stand that when he sent the $15,000 option to her in the west he told her not to sign it until she came home. This warranted a finding that, although the legal title stood in her name, she left the whole management of this land and building to her husband.

2. The sixth ruling asked for was rightly refused. We are of opinion that, although the jury could take the view that the defendant was the holder of the legal title only and left the whole management of the land and building to her husband they could take the view that it was really a gift to the wife. See, for example, Cooley v. Cooley, 172 Mass. 476, 477, 52 N.E. 631; Lufkin v. Jakeman, 188 Mass. 528, 530, 74 N.E. 933. If they did take that view, the fact that they were husband and wife warranted a finding that the husband told his wife of the arrangement which he testified that he made in her behalf on July 23, 1909, with the plaintiff, for the usual commission of 2 per cent. if the deal went through. If he did, there was evidence of a ratification. The defendant did not notify the plaintiff that she repudiated it. See, in this connection Reid v. Miller, 205 Mass. 80, 91 N.E. 223. The jury were at liberty to refuse to credit the testimony of the defendant and her husband that she was not told of the plaintiff's employment. Lindenbaum v. N. Y., N.H. & H. R. R., 197 Mass....